© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 135 Because Massachusetts courts have interpreted the “usual course of business” prong of the Independent Contractor Statute in only a limited number of cases, employers may look to other bodies of law assessing the application of the second prong of the ABC test.783 In a case interpreting the Massachusetts Unemployment Statute, which uses the same “usual course of business” phrase, the SJC held that the services of news carriers were not outside the usual course of a newspaper publisher’s business because distributing a daily newspaper occurred in the usual course of the employer’s business—and that encompassed its news carriers’ task of delivering papers along their routes.784 Similarly, when an auto detailing business hired individuals to perform detailing and reconditioning work, those individuals were deemed employees because “without the services of the workers, [the employer] would cease to operate.”785 And when a sales and marketing company hired individuals to engage in sales efforts, such individuals were deemed employees because the services provided “were the very essence” of the company’s business.786 By contrast, a general contractor properly classified workers as independent contractors when he hired them to perform construction work that he did not know how to do and that he did not perform as part of his own regular business.787 In limited circumstances, the “usual course of business” prong might not apply. For example, the SJC and the First Circuit have held that the Federal Aviation Administration Authorization Act (FAAAA) may preempt the “usual course of business” prong of the Independent Contractor Statute when it comes to motor carriers in the business of transporting property.788 The FAAAA contains a preemption provision, which provides that “all state laws that ‘relate[] to a price, route, or service of any motor carrier . . . with respect to the transportation of property’ are preempted.”789 In their analyses, the SJC and the First Circuit observed that Congress designed the FAAAA to deregulate the transportation of property in the trucking industry to facilitate the free flow of property at competitive rates.790 Given the FAAAA’s language and objectives, “a state statute is preempted [by the FAAAA] if it expressly references, or has a significant impact Supp. 2d 80, 82-84 (D. Mass. 2010) (Awuah I) (finding that a company failed to satisfy the second prong where it was in the business of selling cleaning services, just like the workers at issue, and not in the business of selling franchises). 783 Awuah I, 707 F. Supp. 2d at 82-84. 784 Athol, 439 Mass. at 179 (interpreting the Unemployment Statute, M.G.L. ch. 151A, § 2). See also Coll. News Serv., 2006 WL 2830971, at *6 (finding that services provided by newspaper carriers were not outside the usual course of business in the context of a workers’ compensation claim because College News Service’s entire business is distribution—delivering newspapers obviously is in the usual course of its business). 785 Rainbow Dev., 2005 WL 3543770, at *3. 786 Jinks v. Credico (USA) LLC, et al., No. 1784-cv-02731-BLS2, 2020 WL 1989278, *8 (Mass. Sup. March 31, 2020); see also Hogan, 512 F. Supp. 3d at 181 (holding vendor associates who provided retail services to the defendant’s clients performed in the usual course of business of the defendant because providing retail services was the defendant’s business). 787 Am. Zurich Ins., 2006 WL 2205085, at *5. 788 Chambers v. RDI Logistics, Inc., 476 Mass. 95, 102 (2016); Massachusetts Delivery Assn. v. Healey, 821 F.3d 187, 192 (1st Cir. 2016); see also Schwann v. FedEx Ground Package Sys., Inc., 813 F.3d 429, 440 (1st Cir. 2016). 789 Schwann, 813 F.3d at 435 (quoting 49 U.S.C. § 14501(c)(1)); see also Chambers, 476 Mass. at 101. 790 Schwann, 813 F.3d at 436 (citations omitted); see also Chambers, 476 Mass. at 101 (citations omitted).
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