Section 149:148B - Persons performing service not authorized under this chapter deemed employees; exception

22 Analyses of this statute by attorneys

  1. Determining Whether a Worker is an Employee or Independent Contractor and Entitled to Workers’ Compensation Benefits

    Chartwell LawJamie Spiller KaplanJune 29, 2019

    Recently, the review board revisited this issue in Camargo’s Case, 479 Mass. 492 (2018). The claimant argued that the review board should apply the definition of employee under M.G.L. c. 149 § 148B(a). However, the review board affirmed the hearing judge’s opinion and found that for the purposes of the Workers’ Compensation Act, the independent contractor statute under § 148B(a) is not applicable and does not determine whether a claimant is an employee for the purposes of benefits under the Worker’s Compensation Act.

  2. Worker Classification in Massachusetts: Uber Drives Attention to Employees vs. Contractors

    Bowditch & DeweyJon BarooshianJanuary 12, 2017

    Massachusetts presumes that a worker is an “ employee” unless the employing entity can satisfy each prong of a three-prong, independent contractor test. The test is found in M.G.L. c. 149, § 148B, which provides: (a)For the purpose of this chapter and chapter 151, an individual performing any service, except as authorized under this chapter, shall be considered to be an employee under those chapters unless: (1)the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and (2)the service is performed outside the usual course of the business of the employer; and, (3)the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed. Subsection (d) also provides for potential civil and criminal penalties for a failure to properly classify an employee.

  3. AB 5: The Great California Employment Experiment—A Littler Workplace Policy Institute Report

    LittlerAugust 9, 2019

    However, for the ease of the reader, in this report we will simply refer to the California test as “the ABC test.”184 Cal.5th 903 (2018).19See Mass. Gen. Laws c. 149, § 148B;Dynamex, Slip Op. at 68-69.20Dynamex, 4 Cal.5th at 958-962.21Id.22Dynamex, 4 Cal.5th at 959-960 (internal citations omitted).23Id.at 962 (italics in the original) (internal citation omitted).242019 U.S. App. LEXIS 13237, 2019 WL 1945001 (9th Cir. May 2, 2019).25Patrick Stokes, Bruce Sarchet, and Michael Lotito,Ninth Circuit Withdraws Opinion Regarding Retroactivity of Dynamex v. Superior Court, Will Certify the Question to the California Supreme Court, Littler ASAP (July 24, 2019).26For example, the current exception for real estate licensees provides: (1) if the licensee falls within the scope of section 10032 of the Business and Professions Code, then that section will apply; (2) if section 10032 does not apply, then: (a) for purposes of unemployment insurance, Unemployment Insurance Code section 650 will apply; (b) for purposes of workers compensation, Labor Code section 3200,et. seq., will apply; and (c) for all other purposes under the Labor Code, theBorellotest will apply.27Unde

  4. Update: New Noncompete Agreement Law in Massachusetts

    LeClairRyanDaniel BlakeAugust 21, 2018

    As an aside, entities engaging independent contractors should ensure that they satisfy the stringent requirements of the Massachusetts Independent Contractor law. (M.G.L. c. 149 § 148B.)Employees Who May Not Be Subject to Noncompete AgreementsThe law provides that noncompete agreements may not be enforced against the following types of employees:§Employees who are non-exempt under the Fair Labor Standards Act (i.e. employees eligible for overtime);§Undergraduate or graduate students who are employed as interns or are engaged in short-term employment, as well as employees under the age of 18;§Employees who have been terminated without “cause” or who have been laid off.The law does not define what constitutes “cause” for termination, and employers may be well served by including a definition of what constitutes cause for termination in their noncompete agreements.

  5. New Noncompete Agreement Law in Massachusetts

    LeClairRyanDaniel BlakeAugust 17, 2018

    As an aside, entities engaging independent contractors should ensure that they satisfy the stringent requirements of the Massachusetts Independent Contractor law. (M.G.L. c. 149 § 148B.)Employees Who May Not Be Subject to Noncompete Agreements The law provides that noncompete agreements may not be enforced against the following types of employees: Employees who are non-exempt under the Fair Labor Standards Act (i.e. employees eligible for overtime); Undergraduate or graduate students who are employed as interns or are engaged in short-term employment, as well as employees under the age of 18; Employees who have been terminated without “cause” or who have been laid off.

  6. Noncompete Agreement Bill Finally Passes in Massachusetts

    LeClairRyanDaniel BlakeAugust 10, 2018

    As an aside, entities engaging independent contractors should ensure that they satisfy the stringent requirements of the Massachusetts Independent Contractor law. (M.G.L. c. 149 § 148B.)Employees Who May Not Be Subject to Noncompete Agreements The law provides that noncompete agreements may not be enforced against the following types of employees: • Employees who are non-exempt under the Fair Labor Standards Act (i.e. employees eligible for overtime); • Undergraduate or graduate students who are employed as interns or are engaged in short-term employment, as well as employees under the age of 18; • Employees who have been terminated without “cause” or who have been laid off.

  7. InterConnect FLASH! No. 59 - Massachusetts "ABC" Test Court Decision: Fresh Application On Old Spin

    Benesch, Friedlander, Coplan & Aronoff LLPRichard PlewackiJanuary 6, 2017

    Over the last two years, the Benesch Transportation & Logistics Team has written in various installments of the FLASH about the Massachusetts Independent Contractor Law, Mass. Gen. Laws ch. 149, §148B (the “Massachusetts ‘ABC’ Test”). The Massachusetts “ABC” Test provides that a worker is properly classified as an independent contractor if the employer can show that: (A) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and (B) the service is performed outside the usual course of the business of the employer, and (C) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

  8. Massachusetts High Court Rules Prong Two of Independent Contractor Test is Severable for FAAAA Preemption Purposes

    Ogletree, Deakins, Nash, Smoak & Stewart, P.C.Robert SheaJanuary 6, 2017

    The SJC ruling aligns with the First Circuit’s decision in Schwann v. FedEx Ground Package Sys., Inc.Massachusetts Independent Contractor Test The independent contractor test used in applying Massachusetts wage statutes is arguably the most difficult such test in the nation. Massachusetts General Laws chapter 149, section 148B creates a presumption that an individual performing a service for an employer is an employee. To rebut the presumption of employee status, the employer must satisfy all three prongs of the following test: (1) The individual must be free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; (2) the service must be performed outside the usual course of the business of the employer; and (3) the individual must be customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.

  9. Motor Carriers Unable to Preempt Massachusetts Independent Contractor Law

    Morgan, Lewis & Bockius LLPLisa Stephanian BurtonDecember 21, 2016

    The Massachusetts Supreme Judicial Court (SJC) has ruled that the most onerous provision of the state’s three-pronged independent contractor statute—the requirement that independent contractors perform a service outside an employer’s usual business—is preempted by federal law as it applies to delivery drivers. The SJC’s decision reinforces the US Court of Appeals for the First Circuit’s precedent upholding federal preemption of a portion of the Commonwealth’s Independent Contractor law, Mass. Gen. Laws ch. 149, § 148B (the Independent Contractor Statute or the Statute), a law that provides some of the strongest protections in the United States when classifying employees as independent contractors.Chambers, et. al. v. RDI Logistics, Inc., et.

  10. Same-Day Delivery Companies: 2; MA Independent Contractor Statute: 0. First Circuit Once Again Upholds Classification of Couriers as Independent Contractors

    Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.Gauri PunjabiMay 21, 2016

    Relying on its precedent, the First Circuit Court of Appeals held for the second time this year that the Federal Aviation Administrative Authorization Act of 1994 (“FAAAA”) preempts application of the Massachusetts Independent Contractor Statute, M.G.L. c. 149, Section 148B, to couriers working for Federal Express and other same-day delivery companies. As a result, these companies can continue to save billions of dollars each year in the costs associated with employees, such as overtime, health benefits, and workers compensation insurance.The Massachusetts Independent Contractor Statute Ever since Massachusetts amended its Independent Contractor Statute in 2008, it has become far more difficult for employers to demonstrate that their workers are independent contractors, because they must show all three of the following requirements: (1) that the individual is free from the employer’s control and direction, (2) the service is performed outside the usual course of the employer’s business, and (3) the individual is customarily engaged in an independently established trade or business of the same nature as that involved in the service performed.