In this economy, any work is a privilege. You get a job offer, an opportunity to earn a paycheck and a chance to further your career and earn an income. You feel great. Then you look at your paycheck and realize your employer isn't withholding taxes. Or your employer tells you that you'll be receiving a 1099 at the end of the year instead of a W-2.  Are you really an independent contractor? What are your responsibilities? Do you have any say in the matter?

The truth is that your status as an employee or an independent contractor is not up to your boss. Massachusetts and federal law determine your classification and this classification matters - a lot. The classification determines whether you are eligible for overtime, sick leave, employer sponsored health insurance and other benefits. The classification determines whether you, the worker, are completely responsible for the payroll tax or whether your boss needs to chip in. Unfortunately, some employers try to save money by classifying their employees as independent contractors thereby avoiding legal obligations to pay overtime or provide health insurance and other benefits. These misclassification cases are wrong and illegal and the law provides for stiff penalties for employers who commit these violations.

In Massachusetts, the law is very clear about the difference between an employee and an independent contractor. There is a technical, three-part test that we will explore in a moment. For now, to keep things simple, here are a few simple questions to ask yourself:

- Do I have to be at work at a specific time and leave at a specific time?
- Do I perform work that, without anyone else, my boss would have to perform himself to keep the business going?
- Does my boss tell me how, when and where to do my job on a regular basis?
If you answered "yes" to any of the three questions, you are probably an employee under Massachusetts law. If your boss has classified you as an independent contractor, this classification is probably wrong, illegal and has deprived you of benefits and compensation to which you are entitled. Each legal case is different and the best way to learn if you have a legal claim is to speak with an attorney. Call our office to speak with an attorney today or fill out the form on the right and one of our dedicated attorneys will call you directly.

The Three Part Test for Independent Contractors in Massachusetts

Massachusetts General Laws chapter 149 section 148B (M.G.L. c. 149, s. 148B) contains a three-part test for determining whether an individual is an independent contractor or an employee. The law contains a strong presumption that an individual performing services for another is an employee. Specifically, the statute provides that "an individual performing any service, except as authorized under this chapter, shall be considered to be an employee under those chapters unless:
(1) 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
(2) the service is performed outside the usual course of the business of the employer; and, 
(3) 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."
The law also makes clear that "[t]he failure to withhold federal or state income taxes or to pay unemployment compensation contributions or workers compensation premiums with respect to an individual’s wages shall not be considered in making a determination under this section." This means that the manner in which an employer chooses to pay a worker (e.g., a 1099) is irrelevant for purposes of determining whether the individual is an employee or an independent contractor. What does matter is the law and the law provides important legal rights for employees who have been misclassified as independent contractors, including the right to monetary compensation, especially if you have worked overtime without proper compensation.

If you believe you have been misclassified as an independent contractor, contact our office now. The Statute of Limitations on Wage cases is often short and any delay could compromise your rights.