© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 131 1. Level of Control Exercised by the Putative Employer The first prong of the ABC test scrutinizes the control that a company has and exercises over an individual, with higher levels of control making it more likely that the individual is an employee. Specifically, in order to meet the requirements of the first prong, the company must show that the individual is “free from control and direction in connection with the performance of the service, both under his [or her] contract for the performance of the service and in fact.”756 The initial inquiry examines the contract for services to identify whether the worker was classified as an independent contractor and whether the terms of the contract indicate who would control the individual’s work. At a minimum, a business seeking to classify a worker as an independent contractor should implement an independent contractor agreement and describe the worker as such, although the courts and the Attorney General will go beyond mere labels to scrutinize the actual relationship between the parties. A contract that refers to the individual as an employee may damage the company’s case, but conversely a contract that clearly labels someone as an independent contractor is insufficient by itself to establish independent contractor status.757 Businesses should also carefully consider the ramifications of including Massachusetts choice of law and forum selection clauses in independent contractor agreements and other contracts with non-employee workers. The Independent Contractor Statute does contain an explicit geographic restriction on its application, and the SJC has held that workers who reside and perform work exclusively in another state can challenge their independent contractor status under the Massachusetts statute if they are parties to an agreement with Massachusetts provisions.758 The Independent Contractor Statute also requires freedom from the company’s control in fact, and not merely in the terms of the contract. To be free from control “a worker’s activities and duties should actually be carried out with minimal instruction.”759 These determinations are highly fact specific. In examining the level of control exerted over an individual, courts have considered a number of factors, such as whether the individual was subject to a dress code, wore a company name tag or uniform, had uniforms available to him or her even if wearing one was not required, drove a company vehicle, used company-provided supplies, was subject to performance reviews 756 M.G.L. ch. 149, § 148B(a)(1). See also Weiss v. Loomis, Sayles & Co., Inc., 97 Mass. App. Ct. 1, 7 (2020) (holding that “[t]he issue turns on whether [the company] had the right to supervise, direct, and control the details of [the alleged contractor’s] performance, or whether [he] was free from supervision not only as to the result to be accomplished but also as the means and methods that are to be utilized in the performance of the work”) (internal quotations and citations omitted). 757 See Scalli v. Citizens Fin. Grp., Civ. No. 03-12413-DPW, 2006 WL 1581625, *14 (D. Mass. Feb. 28, 2006) (finding that contract which referred to individuals as “employees” weighed against argument that they were independent contractors). 758 Taylor v. Eastern Connection Operating, Inc., 465 Mass. 191, 198-200 (2013) (overturning dismissal by trial court, which had held that the Massachusetts Independent Contractor Statute does not apply to non-Massachusetts residents working outside of Massachusetts). The Court also held in Taylor that if plaintiffs were ultimately successful on their claims that they were employees under the Independent Contractor Statute, they could also pursue their payment of wages and overtime claims, since those claims were predicated on the assertion that they were employees. Id. at 200. 759 Massachusetts Attorney General Advisory 2008/1, at 3; see also Beck v. Mass. Bay Techs., Inc., 2017 U.S. Dist. LEXIS 215357, *18 (D. Mass. Sept. 6, 2017) (noting that the “crux” of the control prong is “whether the worker performs his work in fact with minimal control” and stating that the “test is not so narrow as to require that a worker be entirely free from direction and control from outside forces.”) (internal citations and quotations omitted).
RkJQdWJsaXNoZXIy OTkwMTQ4