A federal judge has in Massachusetts granted summary judgment and class certification to workers for InStore Group, holding that InStore Group has misclassified its “vendor associates” in Massachusetts as independent contractors, rather than as employees, in violation of the Massachusetts independent contractor statute, M.G.L. c. 149, § 148B.

The judge also certified a class of all individuals who have worked as vendor associates for InStore in Massachusetts since January 4, 2014, with plaintiff Paradise Hogan as the class representative and Brook Lane and Hillary Schwab of Fair Work P.C. as class counsel.

InStore is a “merchandising solutions” vendor that contracts with retailers and manufacturers to provide services such as inventory correction, display building, audits, and the like. It hires individuals as “vendor” or “vendor associates” to perform these services and classifies them as independent contractors.

As independent contractors, the vendor associates are not subject to Massachusetts’ various wage and employee-protection laws and must personally “cover” expenses and costs associated with their work that employees are not normally expected to bear.

In a 71-page decision issued on January 11, 2021, the Honorable Douglas Woodlock, presiding for the District of Massachusetts, held that InStore’s classification of its vendor associates as independent contractors was unlawful under the Massachusetts independent contractor statute because the vendor associates performed a service within InStore’s usual course of business – that is, providing retail merchandising services to clients.

In his ruling, Judge Woodlock rejected InStore’s argument that its usual course of business was not to “provide” merchandising services, but to “coordinate” the provision of those services between the vendor associates and clients.

“Increasingly in the gig economy, the coordination and the provision of services are two sides of the same coin,” Judge Woodlock observed, “So it is here.” Responding to Instore’s assertion that this outcome “defies logic,” Judge Woodlock concluded: “InStore essentially asks me to mold the Massachusetts wage statute to fit its preferences for the retail services industry. Whatever the wisdom of the Massachusetts statute, the text is clear, and it makes no exception for employers simply because they are participants in the conventional gig economy.”

If you’ve worked as a vendor associate for InStore Group at any time in Massachusetts since January 4, 2014, you may be covered by Judge Woodlock’s decision. Please feel free to reach out to us with any questions by emailing Brook Lane at brook@fairworklaw.com.


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