© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 133 2. Services Provided Are Outside the Usual Course of Business The second prong of the ABC test, which is arguably the hardest to satisfy, requires that the individual’s services be performed outside the “usual course of business of the employer.”766 Unfortunately, the Independent Contractor Statute does not define “usual course of business,” making a determination under this second prong as fact-specific as the first.767 A business cannot meet this requirement simply by showing that the individual did his or her work at an outside location.768 Rather, under the revised Independent Contractor Statute, the inquiry under the second prong focuses on the nature of the work at issue. The SJC has said that “a purported employer’s own definition of its business is indicative of the usual course of business.”769 Also, relying on the Attorney General’s 148B Advisory, the SJC noted that another factor in determining the “usual course of business” is “whether the service the individual is performing is necessary to the business of the employing unit or merely incidental.”770 Using this “necessary” versus “incidental” framework, the 148B Advisory lists two examples of relationships that, according to the Attorney General, would not satisfy the “usual course of business” prong under the Independent Contractor Statute: (1) a drywall company that classifies drywall installers as independent contractors; and (2) a motor vehicle appraisal company that classifies appraisers as independent contractors.771 In each example, the 148B Advisory notes that the individual performing the work is performing an “essential part” of the company’s business, and therefore, the company cannot satisfy the “usual course of business” prong.772 On the other hand, the 148B Advisory reflects that an individual moving furniture for an accounting firm would be acceptable under the “usual course of business” prong “because the moving of furniture is incidental and not necessary to the accounting firm’s business.”773 In Sebago, discussed above, the SJC also concluded that taxi cab drivers (in the business of transporting customers for fares) performed their services outside the “usual course of business” of taxi cab medallion owners (in the business of leasing taxis) and radio associations (in the 766 M.G.L. ch. 149, § 148B(a)(2). 767 See id. 768 This distinguishes the Independent Contractor Statute from the standard applicable under the Unemployment Insurance Statute. Under the Unemployment Insurance Statute, a company can satisfy the second prong by demonstrating that the worker performed his or her services either outside the company’s “usual course of business” or outside the company’s “places of business.” M.G.L. ch. 151A, § 2(b). 769 Sebago, 471 Mass. at 333 (citing Athol, 439 Mass. at 179); see also Chebotnikov v. LimoLink, Inc., Civ. No. 14-13475-FDS, 2017 WL 2888713, *8 (D. Mass. July 6, 2017) (noting that the usual course of business prong depends, in part, on how the “business is defined” and denying summary judgment to drivers where LimoLink described itself as a business that “manages reservations” as opposed to a company that “provides limousine services”). 770 Id. (quoting Massachusetts Attorney General Advisory 2008/1, at 6); see also Rosenthal v. Romano Group, Inc., 89 Mass. App. Ct. 1132 (2016) (“We focus our analysis on the realities of [the company’s] actual business operations, . . . and not just the employer’s description of the business.”) (internal quotations and citations excluded). 771 Massachusetts Attorney General Advisory 2008/1, at 6. 772 Id. 773 Id.
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