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Independent contractors and misclassification of employment status

Three necessary requirements for classifying a worker as an independent contractor instead of an employee

Massachusetts law states that an individual performing services for a company shall be considered an employee unless each of three specific requirements are met. If the employer fails to prove each of these requirements, the employer has misclassified the individual and faces serious financial consequences.

The three essential elements are:

(1) The individual is free from the control and direction of his performance of the services, both under the contract for services and the actual performance of the service.

(2) The service is performed outside the usual course of the business of the employer.  E.g., an accounting firm hires an individual to do janitorial services.

(3) The individual is engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.  E.g., A lawyer or CPA.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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