© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 137 routes and to advertise their delivery services to others.799 Similarly, construction subcontractors met this requirement when they were free to work for competing general contractors if they so desired.800 On the other hand, if a company affirmatively restricts a contractor’s ability to provide services to others, such restrictions could be deemed to reflect a lack of independence.801 C. Real Estate Brokers Are Exempt from the ABC Test In a 2015 decision, the SJC held that the Independent Contractor Statute does not apply to real estate brokerage companies and the salespersons with whom they affiliate.802 The plaintiffs in that case, licensed real estate agents, alleged that the defendants, licensed real estate brokers, misclassified them under the Independent Contractor Statute, thus depriving them of wages under Massachusetts law.803 The SJC observed that the real estate statute, M.G.L. ch. 112, § 87PP, et seq., expressly allows real estate salespersons to be affiliated with brokers as independent contractors.804 On the other hand, the Independent Contractor Statute “makes it impossible for a real estate salesperson to satisfy the three factors required to achieve independent contractor status” given the specific requirements under the real estate statute.805 The Court observed, for example, that the real estate statute prohibits a salesperson from operating his or her own real estate business or acting as anything other than a representative of a single broker, making it impossible to satisfy the second and third prongs.806 Regarding the first prong, the Court observed that the real estate statute requires brokers to supervise salespersons, to a certain extent, in order to ensure compliance with an array of statutory and regulatory provisions.807 The SJC held that the real estate statute controls to the exclusion of the Independent Contractor Statute.808 In reaching that decision, the SJC relied on the cannon of statutory construction providing that a specific statute controls over the provisions of a general statute.809 Here, the real estate statute 799 Athol, 439 Mass. at 181-82 (interpreting the Unemployment Statute, M.G.L. ch. 151A, § 2). See also Coll. News Serv., 2006 WL 2830971, at *6 (finding that newspaper carriers were independent contractors because they could choose to work for competing publishers). 800 Am. Zurich Ins., 2006 WL 2205085, at *5; but see Rainbow Dev., 2005 WL 3543770, at *3 (finding that workers did not qualify as independent contractors under third prong of ABC test where they were not “carrying on their own business,” as evidenced by fact that they did not carry general liability insurance and were not bonded) (internal quotations and citation omitted). One court, however, held that a delivery truck driver who formed his own corporation was still an employee because the first prong of the ABC test was not satisfied, and the employee’s business was not “anything more than a shell corporation” established to limit his liability and afford him tax savings. Amero, 2008 WL 5609064, at *3. 801 Weiss, 97 Mass. App. Ct. at 10 (holding that a jury could have found that the plaintiff was not free to provide services to others, stating that “[o]f particular significance was the restriction inserted by [the company] in the contract that [the plaintiff] was only free to work for others ‘so long as such actions [did] not impair [his] ability to perform his … services to [the company]’”). 802 Monell v. Boston Pads, LLC, 471 Mass. 566, 577-78 (2015). 803 Id. at 568 n.10. 804 Id. at 576. 805 Id. at 575. 806 Id. 807 Monell, 471 Mass. at 577. 808 Id. 809 Id.
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