Over the years, many hard working men and women have come into my office facing a serious problem; they’ve been injured at work, but because they’re an independent contractor, they aren’t entitled to workers’ compensation benefits. This means their medical bills will not be paid and they will have to find a way to survive without any income while they remain disabled from work. Most of them didn’t even know the significance of the designation until after they were injured.
Luckily for them, they consulted with an attorney before giving-up. Many employers attempt to improperly designate their employees as independent contractors. Before getting into the details of the law, I want to highlight that Misclassification of an Employee can entitle the Employee for Workers' Compensation, even where they have been denied, but it also triggers it's own separate Employment Law claim for Misclassification. If you are considered an Indepenent Contractor and believe you might be an Employee, you should consult with an Attorney. You can reach me, Andrew Silvia, by phone or text at 508-960-9686.
“Entities that misclassify individuals are in many cases committing insurance fraud and deprive individuals of the many protections and benefits, both public and private, that employees enjoy. Misclassified individuals are often left without unemployment insurance and workers’ compensation benefits. In addition, misclassified individuals do not have access to employer-provided health care and may be paid reduced wages or cash as wage payments.” (An Advisory from the Attorney General's Fair Labor Division on M.G.L. c. 149, s. 148B 2008/11).
To protect the Commonwealth of Massachusetts and its employees, the legislature enacted a law to directly address the issue.
“M.G.L. c. 149, s. 148B, provides a three-part test which requires that all three elements (commonly referred to as prongs one, two and three or the A, B, C test) must exist in order for an individual to be classified other than as an employee. The burden of proof is on the employer, and the inability of an employer to prove any one of the prongs is sufficient to conclude that the individual in question is an employee.” (An Advisory from the Attorney General's Fair Labor Division on M.G.L. c. 149, s. 148B 2008/11).
The United States District Court for the District of Massachusetts addressed this issue and its application to FedEx in Schwann vs. FedEx.
“The crux of plaintiffs’ Complaint is that FedEx improperly classified them as independent contractors when they were in fact employees of FedEx. Under Massachusetts law, a worker is deemed an employee unless the putative employer can show that:
(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.” (Schwann vs. FedEx)
“In order to prove that plaintiffs were independent contractors, FedEx must show,inter alia, that the package pick-up and delivery services that its drivers performed were outside the company’s usual course of business. Mass. Gen. Laws ch. 149, §148B(a)(2). Plaintiffs assert that package pick-up and delivery is the whole point of FedEx’s business and thus no genuine issue of material fact exists as to the second prong of the statutory test. FedEx responds that rather than being in the package delivery business, its real business is logistics, more specifically, the operating of ‘a sophisticated information and distribution network for the pickup and delivery of small packages.’…” (Schwann vs. FedEx).
In spite of a very creative and emphatic defense, which included failed attempts to strike pages from FedEx’s own website, the Court held that the plaintiffs were employees of FedEx under Massachusetts law.
If you have been classified as an Independent Contractor and denied employment benefits including workers compensation, health insurance, unemployment benefits, and additional other benefits due to an independent contractor designation, you should consult an attorney immediately. You can reach me, Andrew Silvia, by phone or text at 508-960-9686. The Law Office of Andrew T. Silvia, LLC, is ready to fight for your protection and rights.
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