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Not all independent contractors are independent or contractors

Independent contractors are now a common feature in the workplace. But just because you agree to work as an "independent contractor" doesn't mean you are an independent contractor.

Here's something we hear all the time: "I agreed to work as an independent contractor, so I was not an employee." In Massachusetts, that is not the way it works, which comes as a surprise for many workers and employers. In reality, you might be an "employee" under the law even though you and your boss thought that you were an independent contractor.

First, let's back up and talk about why it matters. Normally, people work as either "independent contractors" or "employees."

If you are an independent contractor, you are usually not protected by laws that are designed to help employees, including laws about minimum wages, overtime, timely payments, discrimination, harassment, workers' compensation, unemployment benefits, and more.

If you are an employee, on the other hand, then you are protected by all of those laws, which can make a real difference.

Let's say you did work for a company and are owed $3,000. If you did the work as an independent contractor, you can bring a breach of contract claim against the company, but the most you can recover is $3,000 and some interest. You're probably going to have to pay more than $3,000 for a lawyer, so you might end up in the hole, even if you "win" your case.

But if you really were an employee, you could be entitled to triple damages - $9,000 - plus interest, plus an award of attorneys' fees. It's going to be much easier to find an attorney - and to make the other side pay - when you have that kind of leverage.

When it comes to the payment of wages, the law in Massachusetts is strict. If you provided services to a company, then you most likely were the company's "employee," unless it can prove three different things, and it has to prove ALL three of these things.

The company has to prove (1) that it had no right to control how you did your work, (2) that the work you did was different from what the company usually does, AND (3) that you had your own independently established business to do that kind of work. If the company can't prove all three of these things, then you were its employee under the Massachusetts wage laws.

Under this test, it does not matter if you called yourself an "independent contractor." It also does not matter if you signed a written agreement saying that you were an "independent contractor." The law determines who is an independent contractor and who is an employee, not the worker or the company.

If you were called an independent contractor but think you might have been an employee, feel free to reach out to us to find out more about your rights.

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