In Massachusetts, companies with fewer than six (6) employees are not subject to the Massachusetts Fair Employment Practices Act, M.G.L. C.151B but in reviewing a claim, a hearing officer can review whether workers classified as independent contractors were, in fact, employees. In a recent case, a flooring installation company claimed that it was not subject to the Massachusetts Fair Employment Practices Act and the Massachusetts Commission Against Discrimination (MCAD) because it did not employ six (6) employees and that the flooring installers were independent contractors. The flooring installation company was responding to a claim that it discriminated on the basis of sex and pregnancy. MCAC discussed the independent contractor statute, M.G.L. c. 149, § 148B, under which a worker is an employee unless: (1) the worker is free from control and direction in connection with performing the services; (2) the worker’s services are performed outside the usual course of business of the recipient of the services; and (3) the worker is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed. The commission relied on the Attorney General’s guidance in concluding that the flooring workers were employees.
The Attorney General’s Office in addressing the second prong of the three-part test under the independent contractor statute includes as an example of a dry wall installer working for a drywall company performing drywall installations. In that example, the installers are clearly performing an essential part of the employer’s business, and, for that reason alone, the employee cannot be properly classified as an independent contractor. See An Advisory from the Attorney General’s Fair Labor Division on M.G.L. c. 149, § 1483, 2008/1 (“Advisory”), at p.6. In this case, the employees at issue were flooring installers working for a flooring installation company performing flooring installations. Given these analogous circumstances, we decline to reweigh the evidence, and we roundly reject the argument that MCAD jurisdiction was lacking sufficient evidence.
Small businesses should make sure that workers are properly classified as employees or independent contractors and they cannot avoid being subject to the Massachusetts Fair Employment Practices Act by misclassifying workers as independent contractors.
Pavlov v. Happy Floors, Inc., See also Independent Contractor Label Notwithstanding, MCAD Holds Small Business Liable For Employment Discrimination from Laredo & Smith
