the massachusetts independent contractor anomaly what is it and how can it be managed n.
Download
Skip this Video
Loading SlideShow in 5 Seconds..
The Massachusetts Independent Contractor Anomaly: What is it and how can it be managed? PowerPoint Presentation
Download Presentation
The Massachusetts Independent Contractor Anomaly: What is it and how can it be managed?

Loading in 2 Seconds...

play fullscreen
1 / 8

The Massachusetts Independent Contractor Anomaly: What is it and how can it be managed? - PowerPoint PPT Presentation


  • 123 Views
  • Uploaded on

The Massachusetts Independent Contractor Anomaly: What is it and how can it be managed?. Presented to M&A Club Boston Needham Sheraton Hotel, Needham, MA Wednesday , December 11, 2013 By Michael J. Radin, Esq . and Matthew S. Furman, Esq. Tarlow, Breed, Hart & Rodgers, P.C.

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'The Massachusetts Independent Contractor Anomaly: What is it and how can it be managed?' - moira


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
the massachusetts independent contractor anomaly what is it and how can it be managed

The Massachusetts Independent Contractor Anomaly:What is it and how can it be managed?

Presented to

M&A Club Boston

Needham Sheraton Hotel, Needham, MA

Wednesday, December 11, 2013

By

Michael J. Radin, Esq. and Matthew S. Furman, Esq.

Tarlow, Breed, Hart & Rodgers, P.C.

Boston, Massachusetts

MRadin@tbhr-law.com

other states traditional test
E.g. IRS’s 20 Factors:Other States / Traditional Test
  • Worker compliance with instructions required;
  • Training;
  • Integration of worker’s services into the business;
  • Services are rendered personally;
  • Ability to hire, supervise and pay assistants;
  • A continuing relationship;
  • Set hours of work are established;
  • Full time is required;
  • Work performed on business premises;
  • Services performed in a set order or sequence;
  • Oral or written reports required;
  • Payment by the hour, week or month;
  • Payment of business and/or travel expenses;
  • Furnishing of tools and materials;
  • Worker’s investment in facilities used in performing services;
  • Worker’s realization of a profit or loss;
  • Worker performs services for more than one business at a time;
  • Worker makes services available to the general public;
  • Business has the right to discharge worker; and
  • Worker has the right to terminate the relationship.
an employee unless
An Employee Unless . . .

Before July 19, 2004:

Since July 19, 2004:

(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.

(1) such individual has been and will continue to be free from control and direction in connection with the performance of such service under his contract; and

(2) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all places of business of the enterprise; and,

(3) such individual is customarily engaged in an independently established occupation, profession or business of the same nature as that involved in the service performed.

  • Mass. Gen. Laws c. 149, § 148B (emphasis added to “Prong 2” on both).
found to be employees
Found To Be Employees

Delivery Drivers

Fucci v. E. Connection Operating, Inc. (2009)

Taylor v. E. Connection Operating, Inc. (2013) (drivers living and working in New York with Massachusetts law clauses in their agreements).

Cleaning Franchisees

Awuah v. Coverall N.A., Inc. (2010) – “The[] undisputed facts establish that Coverall sells cleaning services.”

See also DePianti v. Jan-Pro Franchising Int’l, Inc. (2013) (multi-tier system).

Contra Jan-Pro Franchising Int’l, Inc. v. DePianti(Court of Appeals of GA 2011)

Exotic Dancers

Chaves v. King Arthur’s Lounge, Inc. (2009)

current court challenges
Current Court Challenges

Real Estate Agents

Monell v. Boston Pads, LLC (2013) – “Therefore, it is impossible for salespersons to satisfy the second prong of the independent contractor statute while simultaneously following the applicable real estate laws. . . . [Because there is a specific statue governing real estate salespersons,] ‘[t]he specific and not the general provision applies.’”

This decision is currently under appeal.

Boston Taxicab Drivers

Sebago v. City of Boston et al. (2014?)

This case is currently under advisement.

penalties for noncompliance
Penalties For Noncompliance

I. Types of Damages

  • Timely Minimum Wage and Overtime
  • Benefits Other Employees Receive
    • E.g. vacation pay, sick pay, holiday pay, healthcare, retirement
  • Worker’s Compensation Insurance Premiums
  • Other Liability Insurance Premiums
  • Pay-to-Work Fees

Awuah v. Coverall N.A., Inc. (2011) – “In substance, [franchise fees] operate to require employees to buy their jobs from employers, and in that respect we think they violate public policy.”

II. Calculation of Damages

  • MandatoryTripling of All Damages
  • Interest (12% per annum from final violation)
responsibility for penalties
Responsibility For Penalties

“Any entity and the president and treasurer of a corporation and any officer or agent having the management of the corporation or entity shall be liable for violations of this section.”

  • Mass. Gen. Laws c. 149, § 148B(d) (emphasis added).
managing the anomaly
Managing The Anomaly

(1) Pay Minimum Wage and Overtime

(2) Deal with Legitimate Entities (?)

Attorney General’s Advisory (2008) – “The AGO will enforce the Law against entities that allow, request or contract with corporate entities such as LLCs or S corporations that exist for the purpose of avoiding the Law.”

Amero v. Townsend Oil Co. (2008) – “If incorporation alone sufficed . . . many employers would require that their employees do just that, and thereby exempt themselves from the requirements of the law.”

(3) Specific Releases

Crocker v. Townsend Oil Co. (2012) – “[An agreement] that includes a general release, purporting to release all possible existing claims will be enforceable as to the . . . Wage Act only if such an agreement is stated in clear and unmistakable terms. In other words, the release must be plainly worded and understandable to the average individual, and it must specifically refer to the rights and claims under the Wage Act.”

(4) Restructure (?)