132 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP or discipline, or set his or her own work schedule.760 While courts construe the control requirement strictly, many also note that the test is not so narrow as to require workers to be entirely “free from direction and control from outside sources.”761 The Attorney General recognizes that even bona fide independent contractors typically work under some level of supervision, but businesses should be prepared to show that supervision was minimal.762 In 2015, the SJC held that taxi cab medallion owners and radio associations met their burden of proof under the ABC test’s first prong—control exercised by the employer—by establishing that taxi cab drivers were sufficiently free from the control required under the statute.763 In reaching that conclusion, the SJC observed that the drivers: (1) chose the shifts that they worked; (2) were free to transport as many or as few passengers as they wished; (3) were “free to operate” their own businesses transporting customers for fares; (4) could contract with other medallion owners and utilize different radio associations; (5) were free to accept or decline dispatches; and (6) signed lease agreements that demonstrated freedom from direction and control.764 Although the drivers were subject to certain restrictions regarding their “appearance, cellular telephone usage, ability to smoke, . . . treatment of passengers, meter rates, and geographic areas of operation,” those indications of control were not imposed by the defendants, but rather by regulations governing the entire Boston taxi cab industry promulgated by the Boston Police Commissioner pursuant to authority delegated by the Massachusetts legislature.765 760 Coll. News Serv. v. Dep’t of Indus. Accidents, Civ. No. 04-4559-A, 2006 WL 2830971, *5-6 (Mass. Super. Sept. 14, 2006) (listing functions); Hogan v. InStore Group, LLC, 512 F. Supp. 3d 157, 177-80 (D. Mass. 2021) (listing indicia of control). See also Am. Zurich Ins. Co. v. Dep’t of Indus. Accidents, Civ. No. 053469A, 2006 WL 2205085, *3 (Mass. Super. June 1, 2006) (“[F]actors used to determine whether the employer controlled and directed the workers’ performance include such things as: (1) whether the worker is paid by the job or by the hour; (2) whether the employer provides tools, equipment, or materials on the job; and (3) whether the relationship can be terminated without any liability on the part of the employer.”); Rainbow Dev., LLC v. Commonwealth, Dep’t of Indus. Accidents, Civ. No. SUCV2005-00435, 2005 WL 3543770, *3 (Mass. Super. Nov. 19, 2005) (defendant monitored individuals’ job performance, required them to drive company vehicles, and made company shirts available); Amero v. Townsend Oil Co., No. ESCV2007-1080-C, 2008 WL 5609064, *2-3 (Mass. Super. Dec. 3, 2008) (holding that first prong of ABC test was not satisfied when employer required delivery truck driver to sign covenant not to compete, paint company’s logo on his truck, and wear a uniform, and where employer controlled driver’s customer list and set prices); Driscoll v. Worcester Telegram & Gazette, 72 Mass. App. Ct. 709, 714 (2008) (holding that first prong of ABC test was not satisfied when a newspaper “controlled virtually all aspects” of service provided by its carriers, including selecting their customers; setting order of their deliveries and prices charged; reserving right to demand additional services from carriers; and directly supervising their work on daily basis). While these cases arose under the Unemployment Statute, the first prong of the ABC test is identical under the Massachusetts Unemployment Insurance and Independent Contractor Statutes. 761 Athol, 439 Mass. at 178 (interpreting the Unemployment Insurance Statute, M.G.L. ch. 151A, § 2); see also Patel v. 7-Eleven, Inc., 489 Mass. 356, 367 (2022) (Patel I) (observing that if the Independent Contractor Statute applies to a franchisee-franchisor relationship, control by a franchisor over an individual franchisee’s “‘method of operation’ does not require a franchisor to exercise ‘control and direction’ in connection with the franchisee’s ‘performing any service’ for the franchisor – the relevant inquiry under the first prong of the ABC test.”). But see Patel II discussion in Section X.A. 762 Massachusetts Attorney General Advisory 2008/1, at 2. 763 Sebago, 471 Mass. at 332-33. 764 Id. 765 Id. at 322, 333.
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