Top Six Myths About Independent Contractors in Massachusetts

Dec 31, 2012

Many companies and individual workers in Massachusetts are still clinging to certain myths about classifying workers as independent contractors.  Here are the top six often held, but misguided beliefs:

  1. I signed a contract that says I am an independent contractor, so I must be one, right? (Actually, employers cannot avoid the obligation to properly classify workers simply by using language in a contract.  The burden is still on the employer to show that the relationship with the individual meets the three part test in M.G.L. c. 149 sec. 148B).
  2. The standard in our industry/profession is that we hire only independent contractors, so anyone working here is an independent contractor. (Many companies following this “standard” are actually in violation of the law.  In Massachusetts, the three part test in the independent contractor statute controls, and not industry custom, standard or practice.)
  3. My job description states that I am free from supervision and control, so I must be an independent contractor, right? (Courts will look beyond the job description to the actual activities of the individual and the degree to which the company directed the activities or the hours worked on the job).
  4. The company I work for gives me a 1099, so that means I must be an independent contractor.  (Many companies that (a)  classify workers as independent contractors, (b) don’t withhold taxes and (c) give a 1099 rather than a W-2 are in violation of the independent contractor law.  The fact that the company doesn’t withhold taxes and gives the individual a 1099 is irrelevant to analyzing whether a worker should be classified as an employee or an independent contractor.
  5. I was injured on the job and the company didn’t provide worker’s compensation for me, so I must be an independent contractor. (The fact that the company did not provide worker’s compensation to a worker is irrelevant to the question of whether the individual should be classified as an employee or an independent contractor.)
  6. As a company, we have always had independent contractors, and it is a win-win for the workers and the company, so we don’t see the need to change. (If the company is misclassifying individuals as independent contractors, it is likely violating multiple other laws, such as the wage and hour laws, the overtime laws, the law requiring witholding of taxes on wages and the worker’s compensation law.  The law provides for civil and criminal penalties, and employees who prevail on their claims are entitled to mandatory treble (triple) damges.  All good reasons to properly classify workers).

If you have any questions about the independent contractor law in Massachusetts or wonder how it applies to you or your company, please call Boston, Massachusetts Labor and Employment lawyer Maura Greene at 617-936-1580. Maura Greene was named in the Boston Globe in 2012 as one of Boston’s top-rated employment attorneys.  She has also been named as a Super Lawyer, based upon peer review ratings and record of achievement.

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