In Massachusetts, it is crucial to properly determine if a worker is an employee or an independent contractor of the employer. If a worker is not properly classified by the employer, it may cause the employer and the directing officers to incur substantial civil penalties and potentially criminal penalties.

An employer cannot classify a worker as other than an employee unless the following three elements are present:

  1. The independent contractor must be free from control and direction in the performance of the services;
  2. The services provided by the independent contractor must not be those preformed in the usual course of business of the contracting party; and
  3. The independent contractor must be customarily engaged in an independently established trade of the same nature of the services performed.

If an employer is able to evidence all three elements are met in the employment relationship, the worker can properly be classified as an independent contractor.