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SJC-12368

                        IVES CAMARGO'S CASE.



            Suffolk.    January 10, 2018. - May 10, 2018.

   Present:    Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                             Kafker, JJ.


Workers' Compensation Act, To whom act applies, Independent
     contractor.



     Appeal from a decision of the Industrial Accident Reviewing
Board.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Michael A. Fager for the claimant.
     Paul S. Kelly (Bruce J. Barker also present) for Publishers
Circulation Fulfillment, Inc., & another.
     Catherine K. Ruckelshaus, of New York, Audrey Richardson,
Janette Ekanem, Emily Spieler, & Ingrid Nava, for Brazilian
Women's Group & others, amici curiae, submitted a brief.


    KAFKER, J.     The claimant, Ives Camargo, seeks review of a

decision by the reviewing board of the Department of Industrial

Accidents (department) concerning her claim for workers'

compensation benefits pursuant to G. L. c. 152.    The reviewing
                                                                   2


board affirmed the findings of an administrative judge,

concluding that the clamant was an independent contractor and

therefore was not entitled to workers' compensation.   The

reviewing board made this determination on the basis of the

definition of "employee" contained in the workers' compensation

statute, as articulated in the twelve-part test from MacTavish

v. O'Connor Lumber Co., 6 Mass. Workers' Comp. Rep. 174, 177

(1992), and Whitman's Case, 80 Mass. App. Ct. 348, 353 (2011),

rather than the definition of employee found in G. L. c. 149,

§ 148B, the independent contractor statute.   The claimant

appealed, and we transferred the case to this court on our own

motion.   The claimant argues that the reviewing board erred in

(1) failing to use the definition of "employee" under G. L.

c. 149, § 148B, to determine whether the claimant was an

employee eligible for workers' compensation under G. L. c. 152;

and (2) finding that the claimant was an independent contractor

rather than an employee.

    We conclude that the independent contractor statute, G. L.

c. 149, § 148B, does not determine whether a claimant is an

employee for the purpose of workers' compensation benefits under

G. L. c. 152.   The reviewing board correctly applied the

workers' compensation statute's definition of employee to

determine whether the claimant was an employee under G. L.

c. 152, and therefore the claimant was properly classified as an
                                                                      3


independent contractor for the purposes of workers'

compensation.1

     1.   Background.   a.   Facts.   The claimant began working as

a newspaper delivery agent for Publishers Circulation

Fulfillment, Inc. (PCF), in 2001.     PCF provides home delivery

services for newspaper publishers and pays delivery agents to

deliver newspapers to subscribers.     PCF does not publish its own

newspapers.   Instead, it acts as a middleman to deliver

published newspapers.    The claimant was hired by PCF and she

signed various contracts over the years that identified her as

an independent contractor.    As part of her contract with PCF,

she was provided with newspaper delivery routes and a list of

customers.    Pursuant to the contract, the claimant could make

her deliveries at any time and in any order she wished, provided

that the deliveries were completed by 6 A.M. on weekdays and 8

A.M. on weekends.   To make the deliveries, the claimant used her

own vehicle, which she did for twelve years.     The claimant was

paid for each newspaper delivered as well as a weekly stipend,

paid when she elected to redeliver newspapers to customers who

did not receive a scheduled delivery.


     1 We acknowledge the amicus brief submitted by Brazilian
Women's Group, Centro Comunitario de Trabajadores, Immigrant
Worker Center Collaborative, Lynn Worker's Center, Massachusetts
Coalition for Occupational Safety and Health, Metrowest Worker
Center, National Employment Law Project, and Service Employees
International Union Local 32BJ.
                                                                     4


       In addition to setting a time by which newspaper delivery

had to be completed, PCF required the delivery of dry and

undamaged newspapers.   Delivery agents could purchase bags to

wrap the newspapers from PCF, which the claimant did, but this

was not mandatory.

       As part of the PCF contract, the claimant was permitted to

hire assistants or subcontract her deliveries, an option she

exercised.   Additionally, given the nonexclusivity of the

contract between the claimant and PCF, the claimant could

deliver newspapers or other items for other businesses.      She

also purchased and collected independent contractor work

insurance and filed her taxes as an independent contractor.

       On September 26, 2010, the claimant was loading newspapers

from PCF into her vehicle using a hand carriage when she fell

off a ramp and hurt her right knee and right hand.    She reported

her injury to PCF but did not seek medical treatment.    Despite

the fall, the claimant finished her work for PCF that day.     On

January 7, 2011, the claimant reported a second injury; she had

slipped on ice while delivering newspapers, injuring her right

leg.    Following this second injury, the claimant was

hospitalized and eventually underwent two surgeries, one for her

right knee and the other for her right hand.    The claimant was

fired in the summer of 2012.
                                                                      5


     The claimant filed an initial claim for workers'

compensation benefits in 2012 with the department.     The insurer

objected.   After a conference, the administrative judge issued

an order directing the insurer to pay the claimant temporary

total incapacity benefits.     The insurer appealed to a hearing,

seeking a denial of all claims.2    In the decision issued after

the hearing, the administrative judge determined that the

claimant was an independent contractor and therefore was not

entitled to workers' compensation benefits.     The reviewing board

affirmed, finding that the claimant was an independent

contractor.

     b.   Relevant statutes.    General Laws c. 152 requires

employers to provide workers' compensation to employees who are

injured within the scope of their employment.     The law applies

to "employees," defined as "every person in the service of

another under any contract of hire, express or implied, oral or

written," with certain exceptions not relevant to this opinion.

G. L. c. 152, § 1 (4).   See Thorson v. Mandell, 402 Mass. 744,

746 (1988); McDermott's Case, 283 Mass. 74, 75 (1933).     In

MacTavish, 6 Mass. Workers' Comp. Rep. at 177, the department

established a ten-factor test to determine whether an individual

is an "employee" under the definition provided by G. L. c. 152,


     2 The insurer also sought penalties against the claimant for
fraudulent behavior, but that issue is not before us on appeal.
                                                                       6


§ 1 (4), or an independent contractor and therefore outside the

scope of the statute.       The MacTavish factors were then

supplemented in Whitman's Case, 80 Mass. App. Ct. at 353 n.3, to

become a twelve-factor test.3      The department has consistently

applied some formulation of the MacTavish-Whitman factors for

over one-quarter century to decide whether an individual is an

employee or independent contractor for workers' compensation

claims.       See Whitman's Case, 80 Mass. App. Ct. at 353; Stone v.

All Seasons Painting & Decorating, 25 Mass. Workers' Comp. Rep.

227, 231-232 (2011); MacTavish, 6 Mass. Workers' Comp. Rep. at

177.       These factors are congruent to tests used in other

jurisdictions to determine whether an individual is an employee

for the purpose of workers' compensation, all of which are


       The relevant MacTavish-Whitman factors are "(a) the extent
       3

of control, by the agreement, over the details of the work; (b)
whether . . . the one employed is engaged in a distinct
occupation or business; (c) the kind of occupation, with
reference to whether, in the locality, the work is usually done
under the direction of the employer or by a specialist without
supervision; (d) the skill required in the particular
occupation; (e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person
doing the work; (f) the length of time for which the person is
employed; (g) the method of payment, whether by the time or by
the job; (h) whether . . . the work is a part of the regular
business of the employer; (i) whether . . . the parties believe
they are creating the relation of master and servant; (j)
whether the principal is . . . in business," MacTavish v.
O'Connor Lumber Co., 6 Mass. Workers' Comp. Rep. 174, 177
(1992), "[k] the tax treatment applied to payment . . .; and [l]
the presence of the right to terminate the relationship without
liability, as opposed to the worker's right to complete the
project for which he was hired . . . ," Whitman's Case, 80 Mass.
App. Ct. 348, 353 (2011).
                                                                   7


largely derived from the Restatement (Second) of Agency § 220

(1958).   See, e.g., Doughty v. Work Opportunities

Unlimited/Leddy Group, 33 A.3d 410, 419 (Me. 2011) (using

factors similar to Restatement [Second] of Agency in determining

who is employee for workers' compensation); Elms v. Renewal by

Andersen, 439 Md. 381, 393 (2014) (using factors similar to

MacTavish-Whitman factors to determine whether individual was

employee for purposes of workers' compensation).

    In contrast, the independent contractor statute, G. L.

c. 149, § 148B, provides the following as a means to determine

employment status:

         "(a) For the purpose of [G. L. c. 149] and [G. L.
    c. 151 (the minimum wage act)], an individual performing
    any service, except as authorized under this chapter, shall
    be considered to be an employee under those chapters
    unless: --

         "(1) the individual is free from control and direction
    in connection with the performance of the service, both
    under his contract for the performance of service and in
    fact; and

         "(2) the service is performed outside the usual course
    of the business of the employer; and,

         "(3) the individual is customarily engaged in an
    independently established trade, occupation, profession or
    business of the same nature as that involved in the service
    performed."

    General Laws c. 149 provides specific benefits and

protections to employees, including how often an employee must

be paid, when an employee must be notified of wage deductions,
                                                                   8


and how much time an employee must be given for break periods

during work.   See G. L. c. 149, §§ 100, 148, 150A.   As

originally drafted, the independent contractor statute was

limited to G. L. c. 149.   In 2004, the statute was amended to

encompass G. L. c. 151, which provides for a minimum wage.

Neither of these statutes provides for workers' compensation

benefits.   General Laws c. 149, § 148B, as amended by St. 2004,

c. 193, § 26, does, however, make limited reference to G. L.

c. 152.   It states:

         "(b) The failure to withhold . . . workers
    compensation premiums with respect to an individual's wages
    shall not be considered in making a determination under
    this section.

         "(c) An individual's exercise of the option to secure
    workers' compensation insurance with a carrier as a sole
    proprietor or partnership pursuant to [G. L. c. 152, § 1
    (4)] shall not be considered in making a determination
    under this section.

         "(d) . . . Whoever fails to properly classify an
    individual as an employee according to this section and in
    so doing violates [G. L. c. 152] shall be punished as
    provided in [G. L. c. 152, § 14,] and shall be subject to
    all of the civil remedies, including debarment, provided in
    [G. L. c. 149, § 27C]."

    2.    Discussion.   The issue presented in this case is

whether the definition of "employee" included in G. L. c. 152,

§ 1, as historically applied by the department, or the

definition of "employee" set out in G. L. c. 149, § 148B,

applies to the determination of workers' compensation benefits.

When reviewing decisions made by the reviewing board, we are to
                                                                     9


give "due weight to the experience, technical competence, and

specialized knowledge" of the agency.    McDonough's Case, 448

Mass. 79, 81 (2006), quoting G. L. c. 30A, § 14 (7).    In matters

of statutory interpretation, "deference is due when an agency

interprets a statute is it charged with administering."

Springfield v. Civil Serv. Comm'n, 469 Mass. 370, 380 (2014).

However, where the statute is not one that the agency

administers, no deference is due.   See id.   We exercise de novo

review of questions of statutory construction in such cases, and

"we must overturn agency decisions that are not consistent with

governing law."   McDonough's Case, 448 Mass. at 81.    We owe

deference to the department's interpretation of the definition

of employee under G. L. c. 152 and other aspects of this

statute.   We do not, however, defer to its interpretation of

G. L. c. 149, § 148B.

    a.     Application of G. L. c. 149, § 148B.   The two key

provisions in the independent contractor statute are G. L.

c. 149, §148B (a) and (d), which state:

         "(a) For the purpose of [G. L. cc. 149 & 151], an
    individual performing any service, except as authorized
    under this chapter, shall be considered to be an employee
    under those chapters unless . . . .

         "(d) . . . Whoever fails to properly classify an
    individual as an employee according to this section and in
    so doing violates [G. L. c. 152] shall be punished as
    provided in [G. L. c. 152, § 14,] and shall be subject to
    all of the civil remedies, including debarment, provided in
    [G. L. c. 149, § 27C]."
                                                                   10



    The claimant argues that the reference to G. L. c. 152 in

subsection (d) incorporates the three-part independent

contractor test set out in G. L. c. 149, § 148B, into G. L.

c. 152, and thus, the definition of "employee" in G. L. c. 149,

§ 148B (a), should be used in lieu of the definition of

"employee" found in G. L. c. 152, § 1, and the MacTavish-Whitman

factors.   We disagree.

    For questions of statutory interpretation, we must consider

"the intent of the Legislature ascertained from all the words

construed by the ordinary and approved usage of the language,

considered in connection with the cause of its enactment, the

mischief or imperfection to be remedied and the main object to

be accomplished, to the end that the purpose of its framers may

be effectuated."   Depianti v. Jan-Pro Franchising Int'l, Inc.,

465 Mass. 607, 620 (2013), quoting Industrial Fin. Corp. v.

State Tax Comm'n, 367 Mass. 360, 364 (1975).   Additionally, the

statute must "be construed 'so that effect is given to all its

provisions, so that no part will be inoperative or

superfluous.'"   Bankers Life & Cas. Co. v. Commissioner of Ins.,

427 Mass. 136, 140 (1998), quoting 2A B. Singer, Sutherland

Statutory Construction § 46.06 (5th ed. 1992).   Here, where two

statutes intersect, we must look at both statutes to determine
                                                                    11


whether § 148B applies to the workers' compensation laws of

G. L. c. 152.

    In interpreting the scope of § 148B, we need look no

further than the plain and unambiguous language provided by the

Legislature in subsection (a) of the statute.   See Phillips v.

Equity Residential Mgt., LLC, 478 Mass. 251, 257 (2017).      The

Legislature provided that § 148B applies "for the purposes of

[G. L. c. 149] and [G. L. c.] 151."   G. L. c. 149, § 148B.    In

so doing, the Legislature has expressed its intent to limit the

applicability of the independent contractor statute to G. L.

cc. 149 and 151.   See Spaniol's Case, 466 Mass. 102, 108-109

(2013) (declining to combine laws where Legislature intended to

keep them separate).   If the Legislature had wanted to

substitute the G. L. c. 149, § 148B, independent contractor

statute for the definition of "employee" included in G. L.

c. 152, § 1, it could have expressly done so in § 148B (a).     The

Legislature also has used the standard language it usually

includes whenever it intends to displace or supersede related

provisions in all other statutes, "Notwithstanding any general

or special law to the contrary . . . ."   See Mosey Cafe, Inc. v.

Licensing Bd. of Boston, 338 Mass. 199, 203-204 (1958) (implying

that "notwithstanding any general or special law heretofore"

language shows legislative intent to displace prior inconsistent

legislation); Beacon S. Station Assocs. v. Assessors of Boston,
                                                                  12


85 Mass. App. Ct. 301, 306 (2014) (stating that "notwithstanding

any general or special law to the contrary" language is used to

displace inconsistent statutes).

    Although the independent contractor statute does not apply

to G. L. c. 152 in its entirety or change the definition of an

employee for the purposes of workers' compensation claims,

G. L. c. 149, § 148B (d), contains a specific and isolated

cross-reference to G. L. c. 152, that requires consideration and

understanding.   In its written decision, the reviewing board

addressed and clarified this cross-reference for workers'

compensation purposes:

         "We do not agree that subsection (d) of § 148B can be
    interpreted to include [G. L. c.] 152 in toto. The
    subsection addresses expanded penalties for misclassifying
    workers, not whether an individual is an employee or an
    independent contractor for the purpose of workers'
    compensation benefits . . . . The subsection's requirement
    that a party that misclassifies a worker in violation of
    § 148B (d) 'and in so doing' violates [G. L. c.] 152
    creates two criteria. The first is the violation of
    § 148B (d), the second is when that violation also violates
    [G. L. c.] 152. This language does not supplant the
    MacTavish-Whitman analysis, but merely notes that when the
    facts of a given case demonstrate a misclassification of a
    worker as an independent contractor under § 148B, the
    penalties of [G. L. c. 152,] § 14 (3)[,] are applicable.
    It does not apply to a determination whether an individual
    is eligible for workers' compensation benefits." (Emphasis
    in original.)

We agree.

    This provision recognizes that a misclassification of an

employee under § 148B may also result in a misclassification of
                                                                  13


an employee under G. L. c. 152, and "in so doing" it will

trigger the heightened penalties provided by both G. L. c. 152,

§ 14, and G. L. c. 149, § 27C.   See L.Y. Nason, C.W. Koziol, &

R.A. Wall, Workers' Compensation § 8.1 (3d ed. 2003 & Supp.

2017) (adoption of 2004 amendment to G. L. c. 149, § 148B, has

no impact on determination of employment status under G. L.

c. 152, § 1, but does provide for punishment when there is

misclassification under both statutes); Advisory A.G., Doc. No.

2008/1 at 4 (2008) (misclassifying employee under G. L. c. 152

is separate and distinct act from misclassifying employee under

G. L. c. 149, § 148B).   See also Massachusetts Delivery Ass'n v.

Coakley, 671 F.3d 33, 37 n.3 (1st. Cir. 2012) ("improper

classification under § 148B, of itself, does not appear to give

rise to a cause of action; instead, the statute seems to require

that an improper classification result in a violation of one of

the referenced chapters [including G. L. c. 152]").

    The plain language and legislative history indicate that

the Legislature intended that the definitions of an employee and

an independent contractor in § 148B apply generally only to

G. L. cc. 149 and 151.   The cross-reference to G. L. c. 152 was

specific and limited:    if, in violating the three-prong test for

determining an independent contractor in § 148B, the

misclassification also violates G. L. c. 152, the penalties

applicable to misclassification under G. L. c. 152 as well as
                                                                   14


G. L. c. 149 apply.   There is no intent to broaden § 148B beyond

this.

    Our laws have imposed differing, and not uniform,

definitions of employees and independent contractors.

Currently, there are at least four distinct methods used to

determine employment status in the Commonwealth.    General Laws

c. 152, § 1, provides a definition of an employee for workers'

compensation claims, and the department uses the MacTavish-

Whitman factors to determine employment status.    General Laws

c. 149, § 148B, provides a three-prong test to define employment

status under G. L. cc. 149 and 151.   A third definition is

provided in G. L. c. 151A, § 2, for the purpose of unemployment

insurance, which uses a three-prong test that is similar to, but

distinct from, the test in G. L. c. 149, § 148B.    In particular,

the second prong expands the definition of independent

contractor from work performed outside "the usual course of

business" to include work performed "outside of all the places

of business."   See Athol Daily News v. Board of Review of the

Div. of Employment & Training, 439 Mass. 171, 176, 179 (2003)

(board erred in awarding unemployment insurance to newspaper

carriers by failing to consider importance of their making

deliveries outside of business premises).   Finally, a fourth

definition of employee is provided in G. L. c. 62B, § 1, for the

purposes of withholding taxes on wages, and the department of
                                                                  15


revenue applies the Internal Revenue Code's twenty-factor

analysis to determine employment status.    See Technical

Information Release 05-11 (Sept. 13, 2005), Official MassTax

Guide, at PSW-206 (Thomson Reuters 2018) (amendments to G. L.

c. 149, § 148B, do not change statutory definition of "employee"

found in G. L. c. 62B).    It is thus not uncommon to have

competing definitions of the same word where the purposes of the

respective statutes are different.   If the Legislature intends

to impose a uniform standard definition of employee or

independent contractor across all employment related statutes in

the Commonwealth, it may of course do so.    However, the isolated

cross-references in G. L. c. 149, § 148B, alone do not so

provide.

    This lack of uniformity also reflects differences in the

particular laws.   The laws governing workers' compensation,

unemployment insurance, minimum wages, and tax withholding serve

different, albeit related, purposes.    Each involves a complex

allocation of costs and benefits for individuals, companies, and

State government itself.   Other States that employ multiple

tests for determining employee or independent contractor status

depending on the context have emphasized these differences.

See, e.g., Terry v. Sapphire Gentlemen's Club, 336 P.3d 951,

957-958 (Nev. 2014), and cases cited (describing why Nevada and

other States have concluded that goals of workers' compensation
                                                                   16


laws are not in pari materia with wage laws, with each being

enacted for precise and distinct reasons resulting in different

tests to determine employment status).     We need not, however,

belabor the similarities or differences in the statutes, as it

is up to the Legislature to decide how much uniformity to

impose, and it has done so with care and particularity in these

statutory schemes.

     Adopting this understanding of G. L. c. 152 and G. L.

c. 149, § 148B, we conclude that the independent contractor

statute, G. L. c. 149, § 148B, does not displace the definition

of "employee" in G. L. c. 152, § 1, and therefore G. L. c. 149,

§ 148B, is not used to determine employment status for workers'

compensation claims under G. L. c. 152.4

     b.   Claimant's employment status.    As stated above, the

definition of "employee" provided in G. L. c. 152, § 1, governs

the claimant's employment status in her claim for workers'

compensation benefits.   The MacTavish-Whitman factors provide

     4 We also recognize that G. L. c. 152, and the case law
interpreting it, place the burden on the individual seeking
workers' compensation to prove all elements of a claim under
G. L. c. 152, including employee status. See Ginley's Case, 244
Mass. 346, 347 (1923); Connolly's Case, 41 Mass. App. Ct. 35, 37
(1996). In comparison, G. L. c. 149, § 148B, places the burden
of proof as to independent contractor status on the defendant,
in this case, the putative employer. Somers v. Converged
Access, Inc., 454 Mass. 582, 589 (2009). We discern no intent
on the Legislature's part in amending § 148B to shift the burden
of proof in workers' compensation cases; indeed, this would
reflect another significant change in the workers' compensation
law.
                                                                   17


the appropriate test to determine employment status for claims

filed under G. L. c. 152.    See Whitman's Case, 80 Mass. App. Ct.

at 353 n.3; MacTavish, 6 Mass. Workers' Comp. Rep. at 177.      "The

question of employment status within the meaning of G. L.

c. 152, § 1 (4), is essentially a question of fact for the

board, not to be set aside if it is justified by the evidence,

unless, of course, it is tainted by some error of law"

(quotations and citations omitted).    Whitman's Case, supra at

353.

       The claimant fails to allege an error of law with respect

to the application of the MacTavish-Whitman factors in this

case.    Moreover, the evidence supports the finding that the

claimant was an independent contractor.    In working for PCF, the

claimant was allowed to expand her business to deliver

newspapers and other items for other companies; supplied all

necessary instruments to complete her job at PCF, including

using her own vehicle to make deliveries; hired substitutes to

complete the job; purchased her own independent contractor work

insurance; and filed taxes as an independent contractor.     In

applying the MacTavish-Whitman test to these facts, the

administrative judge properly concluded, and the reviewing board

properly affirmed, that the claimant was an independent

contractor under G. L. c. 152, § 1.
                                                                   18


    3.   Conclusion.   For the reasons discussed, we hold that

the independent contractor statute, G. L. c. 149, § 148B, is not

used to determine employment status for workers' compensation

claims under G. L. c. 152.   We also affirm the determination of

the reviewing board that the claimant was an independent

contractor.

                                   So ordered.
    GANTS, C.J. (concurring, with whom Lowy and Budd, JJ.,

join).   I agree with the court that, in enacting the independent

contractor statute, G. L. c. 149, § 148B, the Legislature did

not intend to displace the definition of "employee" contained in

the workers' compensation statute, G. L. c. 152, § 1.     I write

separately only to express my concern about the practical

consequences of this statutory scheme, which, by setting forth a

patchwork of different standards for determining whether a

worker is an employee or an independent contractor, may

exacerbate the already complex problem of worker

misclassification.

    Worker misclassification is a serious problem, both in our

Commonwealth and across the nation.   See Somers v. Converged

Access, Inc., 454 Mass. 582, 592-593 (2009); Advisory A.G., Doc.

No. 2008/1 (2008).   Where an employee is misclassified as an

independent contractor, he or she is deprived of many important

benefits and protections, such as minimum wages and overtime

pay, unemployment insurance, and workers' compensation.      See

G. L. c. 151, § 1 (minimum wage); G. L. c. 151, § 1A (overtime

pay); G. L. c. 151A (unemployment insurance); G. L. c. 152

(workers' compensation).   Misclassification also "imposes

significant financial burdens on the Federal government and the

Commonwealth in lost tax and insurance revenues," while exposing
                                                                     2


employers who properly classify their workers to unfair

competition from those who do not.    Somers, supra at 593.

    Part of the challenge in preventing misclassification is

that there is no uniform definition of an "employee."     Instead,

the law sets forth several different standards for determining

who is an employee and who is an independent contractor,

depending on the context.   In 2004, the Massachusetts

Legislature took a significant step toward harmonizing these

standards, amending the independent contractor statute, G. L.

c. 149, § 148B, so that its presumption in favor of employee

status applied not only to the wage and hour laws contained in

G. L. c. 149 but also to the minimum wage and overtime laws in

G. L. c. 151.   See St. 2004, c. 193, § 26.   However, the law

governing employment relations in this State remains far from

uniform.

    As the court notes, Massachusetts law articulates at least

four different standards for determining employment status.

Ante at    .    For purposes of determining whether a worker is

entitled to wage and hour protections, minimum wage, or

overtime, we apply the three-prong independent contractor test

in G. L. c. 149, § 148B (a).    But to determine whether a worker

is entitled to unemployment insurance, we must apply a different

three-prong test, set forth in G. L. c. 151A, § 2.    Meanwhile,

whether a worker is entitled to workers' compensation depends on
                                                                        3


an analysis of twelve separate factors, see MacTavish v.

O'Connor Lumber Co., 6 Mass. Workers' Comp. Rep. 174, 177

(1992), and Whitman's Case, 80 Mass. App. Ct. 348, 353 n.3

(2011), and whether a worker is an employee for purposes of

income tax withholding requires an examination of twenty

factors.     See G. L. c. 62B, § 1 (incorporating Internal Revenue

Code's definition of "employee"); Rev. Rul. 87-41, 1987-1 C.B.

296, 298-299 (listing twenty factors).    In addition, who bears

the burden of proof as to employment status -- the employer or

the worker -- also varies across different contexts.       Under wage

and hour, minimum wage, and overtime laws, an individual who

performs services is presumed to be an employee unless the

employer can prove that he or she is in fact an independent

contractor.    See G. L. c. 149, § 148B (a); Somers, 454 Mass. at

589.    The same holds true for purposes of unemployment

insurance.    See G. L. c. 151A, § 2;   Athol Daily News v. Board

of Review of the Div. of Employment & Training, 439 Mass. 171,

175 (2003).    But that presumption disappears in the context of

workers' compensation, where the claimant bears the burden to

prove his or her entitlement.    See Connolly's Case, 41 Mass.

App. Ct. 35, 37 (1996).

       The practical result of this patchwork statutory scheme is

confusion and uncertainty.    With so many different standards, it

is difficult for employers to classify their workers properly,
                                                                   4


even where they intend to comply with the law.   See Deknatel &

Hoff-Downing, ABC on the Books and in the Courts:   An Analysis

of Recent Independent Contractor and Misclassification Statutes,

18 U. Pa. J.L. & Soc. Change 53, 65 (2015).   Enforcement also

becomes more challenging, as State agencies must expend greater

resources to interpret and implement nonuniform laws.   See id.

See also Buscaglia, Crafting a Legislative Solution to the

Economic Harm of Employee Misclassification, 9 U.C. Davis Bus.

L.J. 111, 129-130 (2008).

    Most importantly, workers must struggle to understand and

assert their rights.   Although Massachusetts laws require

employers to post notices in workplaces explaining the various

protections and benefits available to employees, see, e.g.,

G. L. c. 151, § 16 (notice of minimum wage); G. L. c. 151A,

§ 62A (g) (notice of unemployment insurance coverage), these

notices offer little guidance to workers who do not know, as a

threshold matter, whether they are employees or not.

Ascertaining one's own employment status can be especially

difficult given that, under the current law, the same worker can

be an employee for one purpose but an independent contractor for

another.   Consider, for example, a worker who is deemed an

employee under the independent contractor statute, G. L. c. 149,

§ 148B (a), but not under the workers' compensation statute,

G. L. c. 152, § 1.   If her employer complies with the law, then
                                                                        5


that worker would receive minimum wages, overtime pay, and other

protections associated with employee status.       She may assume on

that basis that she is also eligible for workers' compensation,

and choose not to purchase comparable insurance.       But when that

same worker is injured in the workplace, and seeks workers'

compensation, she would be denied those benefits, realizing only

then, when it is too late, that she was never entitled to them

in the first instance.    Or suppose her employer does not comply

with the law, and does not provide her with minimum wage,

overtime pay, and the other benefits to which she is entitled.

If her employer then also tells her, correctly, that she is not

entitled to workers' compensation because she is an independent

contractor, how do we realistically expect her to understand

that, for the purposes of wage and hour, minimum wage, and

overtime laws, she is still an employee, and is therefore being

denied her benefits under those laws?

    I do not doubt that the different standards for determining

employment status are tailored, as the court points out, to meet

the different purposes of the laws governing employment

relations in our State.    See ante at     .    I suggest only that

it is time to confront the problems that arise from this complex

statutory scheme, especially to workers.       Some States have taken

steps to harmonize their laws; at least one State, Maine, has

adopted a single, uniform standard for determining employment
                                                                   6


status under unemployment insurance, workers' compensation, and

other employment laws.   See 2012 Me. Legis. c. 643

(standardizing definition of "independent contractor" across

laws); Me. Rev. Stat. Ann. tit. 26, § 591 (2007 & Supp. 2017)

(employment practices); Me. Rev. Stat. Ann. tit. 26, § 1043

(2007 & Supp. 2017) (unemployment insurance); Me. Rev. Stat.

Ann. tit. 39-A, § 102 (2001 & Supp. 2017) (workers'

compensation).   See also Or. Rev. Stat. § 670.700 (mandating

cooperation between State agencies to "establish consistency in

agency determinations relating to the classification of

workers").   Other States have introduced measures designed to

provide more guidance to workers as to their employment status.

See, e.g., 820 Ill. Comp. Stat. 185/15 (2008) (requiring

construction contractors to post information about worker

classification); N.H. Rev. Stat. Ann. § 275:49(V) (2010 & Supp.

2017) (requiring employers to post information about criteria

for classifying worker as employee or independent contractor).

Whether such reforms would be appropriate in Massachusetts is,

of course, a question for the Legislature and, as this case

illustrates, a pressing one -- which I invite the Legislature to

address.
