Has your Massachusetts business misclassified employees as independent contractors? It could be a costly error…

March 7, 2018 |

Courts in Massachusetts continue to strictly interpret and apply the state’s independent contractor law: the state favors employment status.  On February 27, 2018, the Appeals Court of Massachusetts (AC) ruled that GateHouse Media Massachusetts I, the publisher of the Patriot Ledger, misclassified David King, a newspaper delivery driver, as an independent contractor (2018 WL 1058352). The AC ruled that King was an employee and thereby affirmed a Norfolk Superior Court judgment against GateHouse.
As with most Court decisions in this area of Massachusetts law, the Appeals Court cited to the second prong of the independent contractor test – GateHouse was required to prove that the service furnished by King was “performed outside the usual course of the business of the employer” (M.G.L.A. 149, § 148B). GateHouse failed in that regard, as is often the case. The Court assessed Gatehouse’s evidence by looking at: (1) its own previous description of its business; and also (2) evidence of whether or not the service was necessary (not just incidental) to GateHouse’s business. As GateHouse had previously held itself out as a distributor of the newspaper, and given that the delivery drivers play a big role in distribution, the AC concluded that King was an employee.
Mr. King is one of many who have delivered the Patriot Ledger by automobile to some of the paper’s subscribers. GateHouse now faces the possibility of paying damages to other similarly situated drivers through a related class action. The newspaper is in the unfortunate spot of being the story–do not let it happen to your business.
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Foley & Foley, PC offers an Positions Classification Audit service to identify potential pitfalls of independent contractors and wage and hour issues. It is an efficient and easy way to protect your business. If you would like more information about this service or any other questions, please contact (508) 548-4888 or info@foleylawpractice.com

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