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

23 Citing briefs

  1. Massachusetts Delivery Association v. Martha Coakley, Attorney General

    MOTION to Intervene and Memorandum of Law in Support Thereof

    Filed December 7, 2010

    This case is in its very early stages, thus there will be no delay caused, undue or otherwise. Additionally, as described by the MDA, the issue in this case is whether Prong B of M.G.L. c. 149, § 148B is preempted as to all trucking/courier companies. However, the MDA has thus far failed to disclose what trucking/courier companies it represents and there is currently no input from individuals who have actually provided trucking/courier services for any such company.

  2. Massachusetts Delivery Association v. Martha Coakley, Attorney General

    MEMORANDUM in Support re MOTION to Dismiss on the Basis of Younger Abstention

    Filed October 22, 2010

    Neither Morales nor Rowe addressed Younger considerations, see, e.g., Morales, 504 U.S. at 381, n. 1 (specifically noting Younger not raised by the state), and both cases can further be distinguished. Compare Morales, 504 U.S. at 383 (involving targeted guidelines relating to airline fare advertising) and Rowe, 552 U.S. at 371-372 (state law targeting the delivery of tobacco provisions) with M.G.L. c. 149, § 148B (broadly applicable misclassification law applying to all employers in Massachusetts). Moreover, because Section 148B does not involve a comparably targeted effort, considerable factual development may well be necessary to determine its impact on MDA‟s members.

  3. De Giovanni v. Jani-King International, Inc. et al

    MOTION for Summary Judgment and Memorandum in Support

    Filed July 15, 2011

    That Jani-King is in the commercial cleaning business is definitively established by its own contracts, by its public marketing, by its contractual obligation to provide commercial cleaning services, and by the work it does to provide cleaning services to “its” clients. As a result, because Jani- King cannot prove that the services performed by cleaners are “performed outside the usual course of the business of [Jani-King],” M.G.L. c. 149, § 148B(a)(2), Plaintiffs are entitled to summary judgment on their misclassification claim. C. JANI-KING’S USE OF THE FRANCHISE STRUCTURE DOES NOT PROVIDE IMMUNITY FROM LIABILITY UNDER SECTION 148B.

  4. Awuah v. Coverall North America, Inc.,

    MOTION for Summary Judgment and Memorandum in Support Thereof

    Filed August 6, 2010

    Somers, 454 Mass. at 592-93 (stating that the legislative purpose behind § 148B was “to protect employees from being deprived of the benefits enjoyed by employees through their misclassification as independent contractors” and noting that violation of § 148B “gives an employer who misclassifies employees as independent contractors an unfair competitive advantage over employers who correctly classify their employees and bear the concomitant financial burden.”); Massachusetts Attorney General’s Advisory on M.G.L. c. 149, § 148B, attached Case 1:07-cv-10287-WGY Document 319 Filed 08/06/10 Page 11 of 20 12 hereto as Ex. 2 (stating that the statute must be enforced strictly because “[t]he need for proper classification of individuals in the workplace is of paramount importance to the Commonwealth” and because “[e]ntities that misclassify individuals….

  5. Chebotnikov v. Limolink, Inc.

    MOTION for Summary Judgment

    Filed November 1, 2016

    The undisputed facts further demonstrate that as a matter of law, Plaintiffs were not “free from control and direction in connection with the performance of the service” and therefore they are entitled to summary judgment under prong one as well. M.G.L. c. 149, § 148B(a)(1). Under prong one, an individual must be free from control both 1) “under his contract for the performance of service” and 2) “in fact.”

  6. De Giovanni v. Jani-King International, Inc. et al

    Opposition re MOTION for Reconsideration

    Filed August 7, 2012

    After setting out the test for determining whether a worker is an employee or independent contractor, the statute imposes liability not on “direct” employers only, but on “any officer or agent having the management of the corporation or entity.” M.G.L. c. 149, § 148B(d) (emphasis added). As a result, even if Jani-King of Boston were the only “direct” employer (whatever that means) based on its failure to satisfy prong two, liability for misclassifying the Plaintiffs would not be limited to Jani-King of Boston.

  7. Depianti et al v. Jan-Pro Franchising International, Inc.

    MEMORANDUM OF LAW

    Filed April 26, 2012

    Plaintiffs would propose the following alternative wording for this third question: 5 As noted at the hearing held on April 24, 2012, Plaintiffs may have framed the first question somewhat differently, but have no objection to the Court certifying the question as proposed (though they suggest that the Court invite the Supreme Judicial Court to offer any other answers on Massachusetts law it deems relevant to this case, so that the Court is not constrained to answering the question precisely as framed). Case 1:08-cv-10663-MLW Document 138 Filed 04/26/12 Page 13 of 14 14 Under this facts of this case, was the plaintiff’s work “performed outside the usual course of the business of” the defendant, pursuant to M.G.L. c. 149, § 148B(a)(2)? Conclusion For the reasons discussed above, the Court should reject Jan-Pro’s untimely and unsupported contention that this Court lacks jurisdiction, and should proceed to certify questions to the SJC with respect to Counts I though IV of the Amended Complaint.

  8. Awuah v. Coverall North America, Inc.,

    MOTION for Summary Judgment

    Filed December 18, 2009

    Case 1:07-cv-10287-WGY Document 200 Filed 12/18/09 Page 7 of 15 8 compensation and unemployment insurance, but it also prevents some employers from undercutting their competition with this unfair advantage. See Attorney General Advisory on M.G.L. c. 149, § 148B 2008/1, Exhibit G, pg. 1; cf. Martin v. Tango’s Restaurant, Inc., 969 F.2d 1319, 1324 (1st Cir. 1992) (recognizing that FLSA wage protections are “intended to protect complying competitors of the defendants, in addition to making the employee whole.”)

  9. De Giovanni v. Jani-King International, Inc. et al

    MEMORANDUM in Opposition re MOTION for Summary Judgment and Memorandum in Support Thereof

    Filed October 29, 2009

    The second prong of Section 148B’s test requires Jani-King to prove that “the service” provided by its franchise owners “is performed outside the usual course of the business of” Jani- 13 King. M.G.L. ch. 149, § 148B(a). Evidence in the record directly shows that it is.

  10. Schwann et al v. Fedex Ground Package System, Inc.

    MOTION to Certify Class

    Filed December 12, 2012

    The statute provides that “an individual performing any service, except as authorized under this Chapter, shall be considered to be an employee … unless… 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 Case 1:11-cv-11094-RGS Document 56 Filed 12/12/12 Page 14 of 22 14 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.” M.G.L. c. 149, § 148B (emphases added). Section 148B thus sets forth a three-prong test for determining whether or not workers are independent contractors, and the prongs are conjunctive; unless all three are satisfied, the worker is an employee.