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EMPLOYMENT LAW GUIDE: - page 40 / 134





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Employee Handbooks/policies/practices

Under Massachusetts law, statements in employee handbooks and policies can create

“implied contracts,” meaning that such statements imply contractual promises. Disclaimer of

contractual commitments – including statements that the employer retains the right to modify

a handbook unilaterally, that the handbook is for general guidance only, or statements that

reiterate at-will status – may or may not be effective to negate a contractual obligation

depending on the circumstances. See Part II, Section 2.2(A) below.


Independent Contractors

Employers sometimes engage independent contractors to perform specific tasks. The

Massachusetts Independent Contractor Law, Mass. Gen. L. c. 149, § 148B, which went into

effect in July 2004, significantly limits the kinds of workers who can be properly classified,

and thus hired, as independent contractors. Under the new law, there is a presumption that a

work arrangement is employer/employee unless the party receiving the services can

overcome this presumption. In order to overcome the presumption, each of the following

three factors must be established: (1) the worker must be free from the presumed employer’s

control and direction in performing the service, both under a contract and in fact; (2) the

service provided by the worker must be outside the employer’s usual course of business; and

(3) the worker must be customarily engaged in an independent trade, occupation, profession

or business of the same type.

According to an advisory issued by the Attorney General, an employer violates the

statute when two acts occur. First, the employer classifies or treats a worker as an

independent contractor although the worker does not meet each of the three criteria listed

above. Second, in receiving services from the worker, the employer violates one or more of


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