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EMPLOYMENT LAW GUIDE: - page 41 / 134

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the state’s wage and hour, taxation and/or workers’ compensation statutes. Failure to meet

these requirements will deem the worker to be an employee for purposes of the

Massachusetts wage and hour, taxation and/or workers’ compensation laws. For practical

purposes this means employers can no longer engage independent contractors to perform

tasks that are a normal course of their business. In addition, there are strict tests in the

workers’ compensation, unemployment insurance and other laws that limit when a worker

can be lawfully classified as an independent contractor.

INDEPENDENT CONTRACTOR OR EMPLOYEE: WHICH ARE YOU?

The first factor of the new test – that the independent contractor must be free from the employer’s control and direction – can be determined from standards that have been developed over the years, and still apply under federal law and in other states. Over the years, the courts have considered many facts in deciding whether a worker is controlled by the employer. These relevant facts fall into three main categories: behavioral control, financial control, and relationship of the parties. In each case, it is very important to consider all the facts – no single fact provides the answer.

BEHAVIORAL CONTROL

These facts show whether there is a right to direct or control how the worker does the work. A worker is an employee when the business has the right to direct and control the worker. The business does not have to actually direct or control the way the work is done – as long as the employer has the right to direct and control the work. For example:

  • ‚óŹ

    Instructions – if you receive extensive instructions on how work is

to be done, this suggests that you are an employee. Instructions can cover a wide range of topics, for example:

  • --

    how, when, or where to do the work

  • --

    what tools or equipment to use

  • --

    what assistants to hire to help with the work

  • --

    where to purchase supplies and services

If you receive less extensive instructions about what should be done, but not how it should be done, that is evidence of being an independent

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