In Gendron v. Kinjawi, No. 1:22-cv-11910-JEK (D. Mass. 2025), the court said that a dental assistant whose responsibilities included including office management, patient care and dental hygiene care, oversight of dental hygienists and administrative staff, was misclassified as an independent contractor. The court said
The Commonwealth’s independent contractor statute, M.G.L. c. 149, § 148B, “evinces the Legislature’s broad, remedial intent ‘to protect workers by classifying them as employees, and thereby grant them the benefits and rights of employment, where the circumstances indicate that they are, in fact, employees.’” Patel v. 7-Eleven, Inc., 489 Mass. 356, 360 (2022) (“Patel I”) (quoting Depianti v. Jan-Pro Franchising Int’l, Inc., 465 Mass. 607, 620 (2013)). To that end, it creates a presumption that “an individual performing any service” for an alleged employer “shall be” considered an employee. M.G.L. c. 149, § 148B(a); see Patel I, 489 Mass. at 360. To rebut that presumption, the employer bears the burden to demonstrate, by a preponderance of the evidence, the following three statutory prongs of what has come to be known at the “ABC test”:
- 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
- the service is performed outside the usual course of the business of the employer; and,
- 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.
M.G.L. c. 149, § 148B(a); see Patel I, 489 Mass. at 360. The employer’s failure “‘to satisfy any prong will result in the individual’s classification as an employee.’” Patel v. 7-Eleven, Inc., 494 Mass. 562, 567 (2024) (“Patel II”) (quoting Sebago v. Boston Cab Dispatch, Inc., 471 Mass. 321, 327 (2015)).
The defendants do not dispute that Gendron performed services for Dr. Kinjawi and Unique Dental. See Patel II, 494 Mass. at 567 & n.14 (the statutory term “performing any service” means “carrying out any labor in the interest, or under the direction, of the putative employer, usually (but not always) for remuneration”). Thus, the question before the Court is whether the defendants can show a genuine dispute of material fact concerning all three prongs of the ABC test. Gendron contends that she is entitled to summary judgment because any rational factfinder would conclude, based on the undisputed record, that she must prevail on the first prong because she was subject to Unique Dental’s direction or control and, alternatively, that she must prevail on the second prong because the services she rendered were part of Unique Dental’s usual course of business. The Court agrees that Gendron prevails as a matter of law on the second prong, and therefore does not address whether the evidence shows that she was free from Unique Dental’s direction or control.
To prevail on the second prong of the ABC test, the putative employer must show that the service is performed outside its usual course of business. See M.G.L. c. 149, § 148B(a)(2). To determine the usual course of business, courts look to how the employer defines its business and “‘whether the service the individual is performing is necessary to the business of the employing unit or merely incidental.’” Sebago, 471 Mass. at 333 (quoting An Advisory from the Attorney General’s Fair Labor Division on M.G.L. c. 149, § 148B, Advisory 2008/1, at 6); see also Carey v. Gatehouse Media Massachusetts I, Inc., 92 Mass. App. Ct. 801, 805-08 (2018). A “service need not be the sole, principal, or core product that a business offers its customers, or inherently essential to the economic survival of that type of business, in order to be furnished in the usual course of that business.” Carey, 92 Mass. App. Ct. at 808.
Unique Dental is a dental practice and describes itself as such. Among the services that Gendron performed for Unique Dental were office management, including scheduling patients, handling billing and copays, processing insurance claims, and overseeing the dental hygienists and administrative staff. She also performed patient care and dental hygiene services, including prophylaxis for adults and children, topical fluoride treatment, and gingivitis treatment. Unique Dental offers no serious argument that these services are not performed in the usual course of business of a dental practice. The role of a dental hygienist is necessary for, not incidental to, any dentist’s business, as hygienists provide a portion of the dental care that patients purchase. The managerial tasks undertaken by Gendron—patient scheduling, claims processing, and billing—are likewise necessary components of any dental practice. No reasonable jury could conclude that these services fall outside the usual course of Unique Dental’s business. See Siciliano v. Cranberry Dental Assocs., Inc., No. 2083CV00233, 2022 WL 22888661, at *1, *3 (Mass. Super. Ct. Feb. 08, 2022) (dental practice employer failed to carry its burden on the second prong as to plaintiff who worked “as a front desk receptionist to answer phones, book appointments, file insurance claims, process payments, bill patients for services rendered and all the associated duties that are regular and usual for a front desk receptionist at a dental office” (quotation marks omitted)).
The defendants nevertheless maintain that Gendron’s services fall outside the usual course of Unique Dental’s business because they were undertaken for the purpose of creating a proposal on improving the productivity and functionality of the dental practice. This argument runs up against the Supreme Judicial Court’s holding that intent plays no role in the misclassification analysis. As that Court explained in Somers v. Converged Access, Inc., “[n]one of the statutory criteria speaks of the employer’s intent; rather, all speak of the nature of the service provided.” 454 Mass. 582, 591 (2009). Thus, even if the worker and employer agree that the worker should be classified as an independent contractor, the worker will be regarded as an employee under Massachusetts law unless the employer can establish all three elements of the ABC test. Id.
Because Section 148B “is a strict liability statute, . . . if an employer misclassifies an employee as an independent contractor,” even when acting in good faith, “the employer must suffer the consequences.” Id. Accordingly, even assuming favorably to the defendants that the evidence shows that Gendron’s purpose in providing dental hygiene and managerial services was to create a proposal for improving the dental practice, that purpose does not alter the conclusion that she performed her services in the usual course of Unique Dental’s business.
The defendants separately argue that because Gendron provided other services to Unique Dental—for example, she ordered new products for Unique Dental to sell, introduced the concept of comprehensive treatment planning, implemented the fluoride standard of care, and arranged demonstrations of teeth whitening products—the evidence shows a dispute of material fact on the second prong. This argument fails for multiple reasons. First, these services are also self-evidently part of the usual course of business of a dental practice. Second, the Court rejects the defendants’ suggestion that when a worker strives to improve her workplace through new ideas and business strategies, such reforms are outside the employer’s usual course of business. That rule would discourage employee innovation—an undesirable result for employers and employees alike—and finds no footing in the text or purpose of Section 148B.
Third, to the extent that the defendants argue that “most” of Gendron’s work was related to enhancing the productivity and profitability of Unique Dental, rather than related to office management and patient care, they have not introduced evidence that creates a material dispute of fact on that issue. ECF 51, at 10. The defendants have pointed to no evidence that breaks down the percentage of time that Gendron devoted to the various services she performed for Unique Dental. The Dentrix time records simply reflect the times that Gendron “punched in” and “punched out” from work. See ECF 51-2. The Dentrix patient care records do demonstrate that Gendron devoted significantly less time to hygiene care than the other dental hygienists, but do not reflect the amount of time she devoted to office management. See ECF 51-6. Dr. Kinjawi’s deposition testimony, if anything, undermines his argument. When asked what tasks Gendron performed in her first week on the job, he testified that “[s]he was on the phone a lot” communicating with Unique Dental’s phone company about a problem with its fax number; she scheduled patients; she talked with the hygienists about patient care; and she brought in “a couple of” dental company representatives. ECF 51-1, at 98-99. He could not remember Gendron performing any other duties in the “first couple of weeks that she worked for the practice,” and he confirmed that her “duties stay[ed] roughly the same throughout the time [she] worked for the practice.” Id. at 99. Construed in the light most favorable to the defendants, the record thus demonstrates that Gendron performed managerial and patient care services “on a regular or continuous basis” for Unique Dental. Weiss v. Loomis, Sayles & Co., Inc., 97 Mass. App. Ct. 1, 8 (2020) (quotation marks omitted).
While Section 148B does not prevent a dental practice from working with someone as an independent contractor to observe its functions, interview its employees, and develop ideas to increase profitability, the evidence in this case shows that Gendron did far more than that for Unique Dental. Because no reasonable jury could find, based on the undisputed record, that Gendron worked outside the usual course of Unique Dental’s business, Gendron was improperly classified as an independent contractor instead of as an employee, and is therefore entitled to summary judgment on Count 1.
Source: 22-11910 – Gendron v. Kinjawi et al – Content Details –