Category Archives: Massachusetts

11.11.24
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For Upcoming Changes to Independent Contractor Rules, Look to Band Names

The band America (“A Horse with No Name,” “Ventura Highway”) was formed in England. Yes, really. But by three Americans whose fathers were in the U.S. Air Force and stationed overseas.

That got me thinking about other bands with place names. When I was growing up in Miami in the 1980s, if someone mentioned Boston, I thought of just another band out of Boston, on the road to make ends meet. If someone mentioned Kansas, I thought of dust in the wind, even though I never particularly liked that song. Chicago made me think of the Cubs, but only in 1984. Otherwise, does anybody really know what time it is?

Not that I am older and have a life, place names mean something different to me. They now make me think of federal, state, and local laws affecting independent contractor status.

(Ok, I take back the comment about having a life. I realize this is a sad and pathetic way to think of place names.)

After the election, place names are going to take on greater importance as businesses aim to protect their independent contractor relationships. Federal enforcement activity isn’t going away, but I expect to see a growing emphasis on legislation and enforcement at the state and local level.

In the realm of non-employee workers (independent contractors, staffing agency temps), I expect to more state and local legislation in these areas:

1) Freelancer Laws. We now have freelancer laws in CA, NY, IL, Los Angeles, NYC, Minneapolis, Seattle, and Columbus. These laws impose requirements when retaining individuals who are independent contractors. The laws generally require written contracts that contain several mandatory components.

2) Temporary Worker Laws. We have these in NJ and IL. They generally require that staffing agencies pay their workers an equivalent wage rate (and sometimes the value of benefits) being paid to workers they work alongside at the company where they are providing services.

3) Misclassification Laws – the Bad Kind. In states with Democrat trifectas (house, senate, governor), expect new laws that make it harder to be an independent contractor. Expect more ABC Tests, like in CA and MA. Other states have ABC Tests for determining who is an employee under workers’ comp and unemployment law.

4) Misclassification Laws – the Good Kind. In states with Republican trifectas, expect more safe harbor laws. If you satisfy a set of basic requirements in your dealings with a non-employee worker, then the worker is an independent contractor under that state’s laws. Pesky balancing tests (and long-haired freaky people) need not apply. We have these state laws in WV and LA (not L.A.)

We will likely see changes at the federal level too, but these may take years to develop. The federal agency rulemaking process is slow and cumbersome, and agency rules will take on less importance as federal agency power continues to diminish after the Supreme Court’s Loper Bright decision.

I haven’t touched on Europe or Asia, but those are bands for another day and another post. When? At some point, in the heat of the moment, but only time will tell.

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© 2024 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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10.28.24
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Hugs! 7-Eleven Franchisees Are Not Employees, Court Rules

Have you ever heard the expression, “I was so happy I could hug a goose”?

Me either. That’s because it’s not an expression. But no one told the sculptor here.

I took this photo while touring the gardens at a villa in Varenna, Italy. I am still haunted by the image. The goose seems none too pleased, but the boy is playing him like a guitar, no matter the feelings of the goose.

Franchise owners in Massachusetts are so happy that they could hug a goose after a recent Massachusetts Supreme Court ruling.

For years, there’s been ongoing litigation in which five 7-Eleven franchise owners sued 7-Eleven, claiming to be employees of the franchisor. The franchise industry has been closely monitoring the case because a ruling for the plaintiffs could threaten the franchise model.

The case has twice been before the Massachusetts Supreme Court. The first time, the Mss. S.Ct. ruled that individual franchise owners could, potentially, be deemed employees under the Massachusetts ABC Test if the individuals were “performing any services” for the franchisor. This ruling, in 2022, merely answered a hypothetical question, but the answer made franchisors nervous.

The litigation continued and made its way to the Mass. S.Ct. a second time. This time the issue was whether the individuals, by operating their stores as 7-Eleven franchises (and following 7-Eleven brand guidelines, etc.) were “performing any services” for the franchisor.

In a goose-hug-worthy decision, the Mass. S.Ct. ruled in late September that “the franchisees operate independent stores not for 7-Eleven
but rather for themselves.” Therefore, they are not performing services for the franchisor, and they cannot be deemed the franchisor’s employees.

This is great news for franchisors (and bad news for plaintiffs’ lawyers). Celebrate however you think is best, but please consider the feelings of the goose.

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© 2024 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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01.02.24
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Snakes! And Other Things to Watch for in 2024

This is a venomous Eastern Brown Snake, native to Australia. Stay away.

Tennis star Dominic Thiem knew what to watch for in his match this past weekend in Brisbane. It was on-court hazard he couldn’t ignore.

Play was interrupted when a “really poisonous snake” slithered onto the court near the ballkids. The intruder, an Eastern Brown Snake, “has the unfortunate distinction of causing more deaths by snake bite than any other species of snake in Australia.” The snake’s venom causes “progressive paralysis and uncontrollable bleeding,” which is not one of the on-court hazards typically of ballkidding.

(I don’t know if ballkidding is the real word for this, but it should be. Or ballkiddery maybe. I also learned from the snake bite article that the proper term for being bit by a venomous snake is “envenomation,” which is a word I hope to use elsewhere in a sentence sometime in 2024. So there’s a New Year’s resolution. [@Lisa, take note, I made one, even though you {correctly} say I am no fun because I won’t play the New Year’s Resolution game.])

The Eastern Brown Snake is not present in the U.S., so we don’t have to watch for any in 2024.

But here are several other things that could bite you in the behind in 2024 if you’re not paying attention:

1. New DOL test for independent contractor misclassification. The DOL issued its proposed new rule in October 2022 and targeted the fall of 2023 for release of a new final rule. The proposed rule would identify seven factors to consider when evaluating whether someone is an employee under the Fair Labor Standards Act (FLSA). The final rule will likely be very similar. We’re still waiting, and the final rule could be released at any time.

2. The new NLRB test for joint employment takes effect Feb. 26, 2024. Unless it doesn’t. The new rule is being challenged in both a federal district court in Texas and the U.S. Court of Appeals in D.C. Either court could quash the rule. The new rule will substantially expand who is a joint employer under the NLRA, even for worksites without unions.

3. Increased state and local enforcement activity. States and localities are filing their own lawsuits alleging worker misclassification. The New Jersey Attorney General recently filed a major lawsuit. The California Attorney General and California localities have been pursuing misclassification lawsuits too. Remember this: As much as I advocate for individual arbitration agreements with class waivers, they have no effect on enforcement actions brought by a state or local government. These lawsuits pose a substantial risk, and the governments love to issue one-sided accusatory press releases when they file the lawsuits.

4. The feds are doing this too. The DOL is bringing its own enforcement actions and publicizing them.

5. State and local laws that affect independent contractor classification and joint employment. We’re seeing legislative activity in three main areas:

(a) laws to change the tests;
(b) laws that provide a safe harbor for independent contractor classification if certain protections are provided to the workers (Cal. Prop 22, this proposed Mass. state law); and
(c) Freelancers laws that impose various requirements when retaining a solo independent contractor (currently: NY, IL, Los Angeles, Minneapolis, Seattle, NYC, Columbus).

6. State laws that criminalize worker misclassification. Take a look at recent legislation passed in NY State and Rhode Island.

7. State laws governing the use of temporary workers. Look for more states to enact laws like the Illinois Day and Temporary Worker Services Act (amended in Aug. 2023) and the New Jersey Temporary Workers’ Bill of Rights (enacted in Aug, 2023). These laws force companies that use staffing agencies to disclose the wages and benefits being paid to direct employees.

8. California’s AB 5 is still being challenged. This is the law that codified the ABC Test for most independent contractor relationships. But it also included a grab bag of miscellaneous and arbitrary exceptions. A full en banc Ninth Circuit has agreed to rehear Olson v. State of California, which challenges the constitutionality of AB 5.

Wishing you a happy, healthy, and litigation-free 2024.

Best wishes,
Todd

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© 2024 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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10.09.23
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Guard Your ‘Stache: Massachusetts May Consider Its Own Version of Prop 22

This is the Moustache Guard.

Invented by Virgil A. Gates of West Virginia, the Guard is intended for “holding the moustache out of the way of food or liquid while eating or drinking.” As you may have already guessed, Virgil filed for a patent in 1876. Why would you have guessed that? Because 1876 was the last time anyone was named Virgil.

Moustaches, while certainly worth guarding (especially those of the handlebar variety), aren’t the only thing in need of protection. Solo independent business owners in the delivery and rideshare industries have been under attack, as class action lawsuits and government agency activity increasingly seek to take away their independence by declaring them employees.

In 2020, California enacted Prop 22, which preserved independent contractor status for these drivers so long as the app companies provided a list of preset benefits and guaranteed pay. In a statewide vote, Prop 22 passed overwhelmingly with 59% of the vote.

Massachusetts may soon follow suit. A similar ballot measure is likely to be considered by voters in the Bay State about a year from now.

The ballot measure, if successful, would create a system like Prop 22 in Massachusetts. Delivery and rideshare drivers would be granted independent contractor status, so long as the app company they were using provided them with a litany of worker benefits. The required benefits would include:

  • Guaranteed pay at 120% of state minimum wage for time spent completing delivery or rideshare requests;
  • Additional per mile pay for each mile driven in a personal vehicle;
  • A healthcare stipend for drivers who average 25 or more hours per week;
  • One hour of paid sick time per 30 hours worked;
  • Accident insurance; and
  • Prohibitions on discrimination based on race, sex, sexual orientation, and other protected characteristics.

Click here for the official summary of the proposed law.

If the ballot initiative receives enough signatures, it may appear on the ballot for a statewide vote in November 2024. Alternatively, the legislature may choose to consider the issue on its own, before the 2024 general election.

Initiatives like this one and California’s successful Prop 22 provide a reasonable, common sense third alternative to what is usually a binary choice between classification as an independent contractor (with no employee rights) and an employee. Rideshare and delivery drivers generally value their independence and the ability to operate their own business. Laws like this one allow them to do so as contractors while receiving certain benefits and guarantees.

And that’s worth protecting.

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© 2023 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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07.05.22
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Hear This: Ballot Measure to Limit Mass. ABC Test is Blocked

Have you heard? There’s a baby goat in Pakistan who may have set the world record for Longest Ears by a Goat. The ears are each 1.6 feet long. Which also means there’s category for Longest Ears by a Goat.

The goat, named Simba, reportedly trips on its ears, which are so long that they drag on the ground. That’s a problem, I hear.

I’m also hearing of a problem in Massachusetts, but it’s of a different sort entirely.

Efforts to add exceptions to Massachusetts’ ABC Test for independent contractor misclassification have been scuttled by the state’s Supreme Judicial Court. A ballot measure modeled after California’s Prop 22* would have created exemptions to support independent contractor status for app-based rideshare and delivery drivers. The Court, however, ruled that the proposed ballot measure covered too many subjects and could not lawfully be placed on the ballot.

What does all this mean?

As many of you know, Massachusetts has the toughest test in the nation when it comes to classifying independent contractors. Under Massachusetts wage and hour law, a worker is deemed an employee unless —

A) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and

B) the service is performed outside the usual course of the business of the employer; and,

C) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

That’s a strict ABC Test, like California’s. But California’s ABC Test has a slew of exceptions, memorialized in AB 2257, formerly AB 5. The Massachusetts Independent Contractor Law has no exceptions, which makes Massachusetts a favorite venue for plaintiffs’ lawyers who like to bring misclassification cases.

With the ballot measure struck down, voters will not have an opportunity to pass a Prop 22-like bill in Massachusetts that would have allowed app-based rideshare and delivery drivers to maintain independent contractor status, so long as certain requirements were met.

States with ABC Tests continue to pose significant compliance risks for businesses that rely on independent contractors. It’s easy to trip and fall, regardless of the size of one’s goat ears.

*California’s Prop 22 is in limbo too. As explained here, a state court ruled the ballot measure unconstitutional. The issue is now on appeal.

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© 2022 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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06.28.21
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Portable Benefits: Soon to Be Available for Mass. Independent Contractors?

This article in The Fox Magazine lists five things you can buy that are portable, even though you wouldn’t think they could be. The list includes toilets, massage chairs, saunas, neck fans, and bedrooms. The description of a portable bedroom goes like this:

Another brilliant innovation from the country that brought us the toilet in a suitcase, you can now buy a portable bedroom which comes folded up in a series of cabinets that look just like regular closets and dressers. Simply open the cabinet and fold out your bed for a super comfortable night’s sleep.

Um, no thanks.

If this article is revised next year, one surprising addition to the list could be Health Benefits for Massachusetts Independent Contractors. A new bill, inspired by California’s Prop 22, has been introduced in the Massachusetts legislature. To my surprise, the three co-sponsors are Democrats.

The bill, H. 1234, would create a exception to the strict ABC Test in Massachusetts, but only in the rideshare and delivery industries.

If the bill passes, rideshare and delivery platform companies would be required to offer occupational accident insurance and pay into a portable benefit account for drivers.

In exchange for doing so, these companies would gain assurance that drivers on their platforms are independent contractors under Massachusetts state law. The normal ABC Test would not apply. Platform companies would also be required to follow a few other basic guidelines in their interactions with drivers, including that:

  • Drivers can decide when to work and not work;
  • Drivers’ access to the platform cannot be terminated for declining a specific rideshare or delivery request;
  • Drivers can provide services on multiple platforms; and
  • Drivers can also work in another lawful occupation or business.

The bill is supported by the Massachusetts Coalition for Independent Work (and, of course, by the gig companies), and it is opposed by the Boston Independent Drivers Guild.

If passed, this would mark a significant exception to the strict ABC Test in Massachusetts, which currently presumes all working relationships to be employment, unless:

(A) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and 

(B) the service is performed outside the usual course of the business of the employer; and, 

(C) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

Unlike California’s AB 5 (later rewritten as AB 2257), the Massachusetts law does not currently have exceptions for certain industries. Rideshare and delivery services would be the first industries carved out of the Massachusetts ABC Test.

The bill is in the early stages of being considered. It has been referred to the Joint Committee on Financial Services for further consideration. We’ll keep an eye on this one. It’s much more intriguing to me than a portable bedroom or sauna.

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© 2021 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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