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Independent Contractors

Massachusetts' Definition of Independent Contractor:

Under Massachusetts' law (Ch. 149, sect. 148B of Mass. General Laws), it is presumed that individuals performing any service are deemed "employees" unless the employer can show that ALL THREE of the following factors are present:

1. Freedom from control. "The worker is free from control and direction in connection with the performance of the service, both under his or her contract for the performance of service and in fact." That means the person's activities must be carried out with minimal instruction regarding the approach to the work or the hours kept.

2. Service outside the usual course of the employer's business. The service performed must be "outside the usual course of business of the employer" for the individual to not be classified as an employee. (Prior to 2004, employers could alternatively demonstrate that the work was performed "outside of all places of the business.")

3. Independent trade or profession. An individual must be "customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed" in order to be classified as an independent contractor.

All three elements must exist for workers to be classified as independent contractors. The burden of proof is on employers to establish these three elements.