Last week, we tweeted about a challenge to the Massachusetts Independent Contractor statute brought by a non-profit trade organization that challenged the law.  Patrick Curran, Jr., of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. writing for the JD Supra Law News website told the story of a challenge to the Massachusetts law that ultimately failed.

I will leave the reason for the court’s ruling to the legal pundits, but this is not the first time a challenge to the Independent Contractor statute has failed, and it will not be the last.  The new reality is that mounting state and federal deficits challenge legislators to bring in enough income to pay its bills.  For many years, a fair number of would-be taxpayers have dodged the taxing authorities under the guise of self-identifying as Independent Contractors.  Stretched government budgets have brought deeper scrutiny to those who claim this status.

If you, or those who work for you or on your behalf, seek to be identified as Independent Contractors, be aware of the three-part test that is the law of the land in Massachusetts:

  1. The worker is free from the employer’s control and discretion in connection with the performance of the service.
  2. Services performed by the worker are outside the usual course of the employer’s business, and
  3. The worker is customarily engaged in an independently established trade, occupation, profession, or business of the same nature that involved in the service performed.

It is important to note that all of the above criteria be met.  No, it is not an “either/or” situation.  As a small business employer, the safe approach is closely follow these guidelines before making a decision on hiring versus contracting.

If you have questions or concerns about hiring employees versus independent contractors please reach out to Genesis HR Solutions at or 800-367-8367.