Driscoll v. Worcester Telegram & Gazette (WT & G) serves as a cautionary reminder to employers that courts will rigorously scrutinize independent contractor classifications. In WT & G, the Massachusetts Appeals Court held that a newspaper carrier, who had worked for WT & G for 21 years under a contract as an "independent contractor," was not an independent contractor, but instead an employee, clearing the way for the carrier to receive unemployment compensation.
The Appeals Court distinguished WT & G from an earlier Supreme Judicial Court decision holding carriers of the Athol Daily News to be independent contractors. In WT & G, the Appeals Court found that the company failed the first prong of the independent contractor test, which requires the contractor to be "free from control or direction of the employing enterprise." The Court found that WT & G "controlled virtually all aspects of the services provided by [the carrier]," noting, among other things, that WT & G:
- determined the order of deliveries
- closely monitored performance
- periodically adjusted performance standards based on customer complaints
- required carriers to provide additional services, such as delivering product samples
- retained the right to reject substitute carriers
In recent years, the question of who is and who is not an independent contractor under Massachusetts law has been the subject of concern for many employers as the new law (revised in 2004) made it much more difficult for employers to enter into relationships that satisfy the statutory test. In light of recent legislation making treble damages mandatory in the event of any violation of Massachusetts wage and hour laws, and the prevalence of wage and hour class action litigation, it has become even more important for employers to structure and monitor these relationships to avoid exposure to significant liability.
For more information on this decision, please contact Employment Law Partner Jeff Dretler at 617 456 8130 or [email protected], or Media, Internet and Intellectual Property Law Partner Rob Bertsche at 617 456 8018 or [email protected].