A superior court judge has decided that a third party cannot be sued for “aiding and abetting” a violation of the Massachusetts Independent Contractor statute. Despite decisions by other courts allowing such claims to survive at the pleading stage, Justice Brian Davis ruled that, because the underlying suit against a putative employer was statute-based and did not assert a common law tort cause of action, aiding and abetting liability does not exist.
The August 7, 2013 decision is significant to a broad range of companies that face class action lawsuits for aiding and abetting the alleged misclassification of employees. Floodgates were opened in this area by a federal court’s late-2011 decision denying a defendant’s motion to dismiss a cause of action for aiding and abetting the violation of Mass. Gen. L. ch. 149, s. 148B. That statute indisputably does not provide for such liability. Neither, it plainly appears, does the common law of aiding and abetting, a form of civil conspiracy that requires proof of an underlying tort along with the providing of substantial assistance by the aider/abettor.
The defendant is a New York company that acts as an administrator. It was initially accused of employing drivers who were allegedly misclassified as contractors, but those claims were dropped voluntarily on its motion to dismiss. Despite the fact that all events occurred within what is asserted to be an employment relationship, the defendant remains in the case on a claim it violated the Consumer Protection Act (Mass. Gen. L. ch. 93A, s. 11).