Joyce Davis


Employee in Mass. Workers' Comp


Who Is An Employee?

To be eligible to collect workers’ compensation benefits, you must be able to show that you were an "employee," and not an independent contractor, at the time you were hurt. With certain specified exceptions, the Workers’ Compensation Act defines an "employee" as:

. . . every person in the service of another under any contract of hire, express or implied, oral or written, excepting . . . (g) a person whose employment is not in the usual course of the trade, business, profession or occupation of his employer . . .


One of the most important tests for distinguishing an employee from an independent contractor is the right of control. MacTavish v. O’Connor Lumber Company, 6 Mass. Workers’ Comp. Rep. 174 (1992). The right of control means that the alleged employer can direct your work. Other factors include whether you used your own tools or those of your alleged employer, whether you had an express contract of hire, whether you were paid by the hour, week or by the job and whether your work was within the scope of your alleged employer’s business. Significantly, the fact that you were called an independent contractor or received a 1099 form at the end of the year will not determine your status as an employee for the purpose of workers’ compensation benefits.

The Independent Contractor Law

In addition to the workers’ compensation statute, Massachusetts has an Independent Contractor Law, M.G.L. c. 149, §148B, that defines who qualifies as an "employee." Historically, under the Independent Contractor Law, there has been a presumption of employment in Massachusetts. (This means that your alleged employer has the burden of disproving that you were not an employee.) In 2004, however, Legislature amended the statute by broadening the definition of employee. As the Attorney General explained in his advisory to the 2004 amendments:

The Independent Contractor Law excludes far more workers from independent contractor status than are disqualified under the traditional state and federal law tests, including the 20 Factors Test set forth in Internal Revenue Service ("IRS") Revenue Ruling 87-41, the Fair Labor Standards Act ("FLSA") and the Massachusetts common law. As a result, Massachusetts employers will need to reexamine many of their work relationships to ensure that they are complying with the law.


Under the present statute, a party seeking to overcome the presumption of employment must show the presence of three factors: 1) freedom from the presumed employer’s control and direction in performing the service, both under a contract and in fact; 2) services provided by the worker that are outside the employer’s usual course of business; and 3) a worker who is "customarily engaged in an independent trade, occupation, profession or business of the same type."


The issue of whether the Independent Contractor Law applies to workers’ compensation cases has not been decided by the Reviewing Board at the Department of Industrial Accidents. Nevertheless, I have argued that the statute does apply. First, M.G.L. c. 149, §148B(d) explicitly states:

. . . Whoever fails to properly classify an individual as an employee according to this section and in so doing violates chapter 152 shall be punished as provided in section 114 of said chapter 152 and shall be subject to all of the civil remedies, including debarment, provided in section 27C of this chapter.


(Emphasis added).

It is my contention that the only reason for the Legislature to have added this sentence, particularly the phrase "according to this section," was to explicitly broaden the scope of the Independent Contractor Law to include workers’ compensation. Prior to the amendment, persons failing to properly classify employees were already subject the remedies under Section 114. Moreover, if the Legislature meant to continue to have the Department of Industrial Accidents apply the standards established under existing case law, it would have omitted the phrase "according to this section." The section would then have applied only to "[w]hoever fails to properly classify an individual as an employee and in so doing violates Chapter 152." It is well established that "[n]o portion of the statutory language may be deemed superfluous." Commonwealth v. Caracciola, 409 Mass. 648, 654 (1991), quoting Commonwealth v. Gove, 366 Mass. 351, 354 (1974).

This construction is consistent with the Department of Industrial Accidents’ decisions of appeals regarding the amount of premium an employer must pay. See In Re: Rainbow Development, LLC; In Re: James McMorrow (DBA JFM Construction), (July 12, 2005) and In Re: College News Service (Sept. 30, 2004). The Department’s view has been upheld on appeal. In College News Service v. Department of Industrial Accidents, Mass. Super., LEXIS 470 (2006), the Superior Court reversed the Department’s decision on factual grounds, but found that M.G.L. c. 149, §148B applies to workers’ compensation cases. It stated:

In the present appeal the evidence submitted at the administrative hearing is largely undisputed. The legal significance of the evidence is disputed. The issue is whether the correct application of G.L. c. 149, §148B to that evidence renders the newspaper delivery drivers as independent contractors exempt from workers compensation coverage or as employees covered by insurance and generating premiums for the contracting employer.


(Emphasis added).

My argument is that if the Independent Contractor Law applies to the determination of whether an employer is liable for payment of workers’ compensation premium, it necessarily follows that the statute must also apply to the determination of who is an employee entitled to workers’ compensation benefits. Otherwise, employers would find themselves in the position of paying premium for individuals who could not receive benefits. "[W]here two or more statutes relate to the same subject matter, they should be construed together so as to constitute an harmonious whole consistent with the legislative purpose." Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981).

"The Act was enacted as a ‘humanitarian measure’ in response to strong public sentiment that the remedies afforded by actions of tort at common law did not provide adequate protection to workers. . . . It is a remedial statute and should be given a broad interpretation, viewed in light of its purpose and to ‘promote the accomplishment of it beneficent design.’" Neff v. Commissioner of the Department of Industrial Accidents, 421 Mass. 70, 73 (1995), quoting Young v. Duncan, 218 Mass. 346, 349 (1914) (citations omitted). The Supreme Judicial Court has also directed that "[t]he workmen’s compensation act is to be construed broadly to include as many employees as its terms will permit." Warren’s Case, 326 Mass. 718, 719 (1951). In light of these dictates, I believe that it is appropriate to require that insurance companies meet the requirements of the Independent Contractor Law.


I am still awaiting a final decision in my case.