It’s been several years since Massachusetts enacted the country’s most restrictive standards for classifying someone as an independent contractor, and yet frustration still arises any time I try to counsel clients on compliance. Many assumed that the law would quickly be “corrected” or, at least, interpreted in such a way as to permit the continued use of independent contractors. By issuing various advisories and interpretations, the Attorney General’s Office and the courts have squashed those assumptions. And, to date, despite periodic flurries of activity, the Legislature has not seen fit to change the law to bring it back into line with the 49 other states and the needs of the business and freelance communities.
There is ample reason for the “anti-independent contractor” moniker attached to the Massachusetts law. The law identifies three criteria for properly classifying someone as an independent contractor: (1) freedom from control; (2) unique skills; and, (3) outside the expertise of the business. It is this third requirement that gives fits. Short of the plumber that your company hires to fix the bathrooms, most people you hire to help your business run more smoothly, efficiently or completely, will be by definition, people that are providing services that your company is in the business of providing. So, for example, if you are a web-site designer and need someone to provide some technical expertise for a particular functionality that you want to add to the site, that person cannot properly be treated as an independent contractor. Even if this is a one-shot, 10 hour assignment, technically the person must be brought on board as an employee.
I pride myself on working with companies to ensure legal compliance in the most practical, effective and cost-conscious manner. Imagine that web-site designer’s reaction when I try to explain that Massachusetts law will not consider that consultant to be an independent contractor. That being said, companies faced with this issue need to assess their business needs and the penalties for noncompliance before blindly waiving the white flag. Creativity in this area may be severely constrained but it is not dead.