Independent contractor

There is no simple rule of thumb to determine who is an independent contractor for purposes of workers’ compensation claims and disputes. Determination of independent contractor status is always a question of fact. Inquiries about independent contractors should go to your own attorney or to the Office of Legal Counsel at (617) 727-4900, ext. 7423 to speak with a staff attorney.

In Massachusetts under MGL c. 149, § 148B, workers are presumed to be employees. An employer who wants to treat someone as an independent contractor has to show that work:

  1. Is done without the employer’s direction and control 
  2. Is performed outside the usual course of the employers business 
  3. Is done by someone who has their own, independent business or trade doing that kind of work

The Attorney General’s office has issued an advisory on independent contractors that:

  • Explains the purpose of the law
  • Discusses the 3-part test for independent contractor classification
  • Includes enforcement guidelines
  • Describes the areas of concern and factors that the Attorney General’s office may use to determine enforcement

For more information, please contact our Office of Legal Counsel at (617) 727-4900, ext. 7423 to speak with a staff attorney.

Subcontractors

There is no simple rule of thumb in deciding who is a subcontractor. Questions about subcontractors should go to the Office of Legal Counsel at (617) 727-4900, ext. 7423 to speak with a staff attorney. Generally the deciding factor is whether the employer has control over the manner and methods of the work.

Subcontractors may have money deducted for workers’ compensation coverage by the general contractor but only if it is provided for in their contract, or otherwise it is explicitly provided. General contractors have legitimate concerns about whether subcontractors have workers’ compensation insurance as they can be held liable for claims against them by a subcontractor or their employees. Therefore, subcontractors may find the general contractor requires them to provide proof of workers’ compensation coverage, or that the subcontractor agrees to come under the general contractor’s workers’ compensation policy with the costs passed on to them.

Homeowners can be held liable if a contractor working in their home gets injured. Contact our Office of Legal Counsel at (617) 727-4900, ext. 7423 to speak with a staff attorney to find out under which circumstances this may happen.

Small and/or family businesses

All employers are required to carry workers’ compensation for their employees, including themselves if they are an employee of their company. This requirement applies regardless of the number of hours worked, except domestic service employees who must a work a minimum of 16 hours per week to require coverage.

Family members must be covered by workers’ compensation even if they are the only employees of the business.

Source: https://www.mass.gov/service-details/who-is-covered-by-workers-compensation-insurance