The conservative answer to this question is “never.” Under Massachusetts law, the use of independent contractors is severely restricted. In a classic example of what many consider legislative overkill, the law assumes all workers are employees, not contractors, regardless what the parties may have agreed to, until and unless employers prove otherwise. The criteria for doing so are so restrictive, taken together, that virtually no business in Massachusetts can satisfy them.
Under Mass. Gen. L. ch. 149, s. 148B, individuals who provide services to another are employees unless the recipient of those servies — that is, in normal circumstances, the supposed employer — prove the following:
1. That the worker is free from control in the performance of the services, both under any contractual agreement and in practice;
2. That the work being performed is something different from that normally performed by the recipient — that is, it is outside the usual course of its business dealings; and
3. That the provider of the services is engaged in an independent business enterprise, something that is akin to true self-employment. [Read more…]