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SJC-12080

   TIMOTHY P. CHAMBERS1 & another2 vs. RDI LOGISTICS, INC., &
  another;3 DEE & LEE, LLC, & another,4 third-party defendants.



         Bristol.     October 5, 2016. - December 16, 2016.

  Present:    Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
                             & Budd, JJ.


Independent Contractor Act. Federal Preemption. Statute,
     Federal preemption, Severability. Practice, Civil, Summary
     judgment, Standing. Employment, Retaliation. Protective
     Order.



     Civil action commenced in the Superior Court Department on
September 20, 2013.

     An emergency motion for a protective order was considered
by Richard T. Moses, J.; a motion for reconsideration was
considered by him; and the case was heard by him on motions for
summary judgment.



     1
       Individually and on behalf of all others similarly
situated.
     2
       Leroy Johnson, individually and on behalf of all others
similarly situated.
     3
         Richard J. Deslongchamps, Jr.
     4
         Three T & C Transport, Inc.
                                                                   2


     The Supreme Judicial Court granted an application for
direct appellate review.


     Harold L. Lichten (Peter M. Delano with him) for the
plaintiffs.
     Michael T. Grant (Andrew J. Fay with him) for the
defendants.


    LENK, J.   We are called upon in this case chiefly to

consider whether G. L. c. 149, § 148B, the independent

contractor statute, is preempted by the Federal Aviation

Administration Authorization Act of 1994 (FAAAA),

49 U.S.C. § 14501(c).   The plaintiffs, who contracted with the

defendants through small corporations that the plaintiffs

apparently formed for this purpose, performed services in

Massachusetts as furniture delivery drivers.   They brought this

putative class action against the defendants under the

independent contractor statute, asserting that they had been

misclassified as independent contractors.   Following the

addition of other claims and counterclaims, summary judgment

entered for the defendants dismissing the plaintiffs' claims on

the ground that they were preempted by the Federal statute.

    We conclude that, while a portion of the independent

contractor statute is preempted by the FAAAA, the remainder is

severable and remains applicable to the plaintiffs'

misclassification claim.   Nor is summary judgment dismissing

that claim warranted on the separately asserted basis that the
                                                                   3


plaintiffs lack standing as individuals to assert claims for

misclassification under the statute.   Material issues of

disputed fact preclude the entry of summary judgment on either

basis.    We conclude similarly that the dismissal, without

explanation, of the claim of retaliation that Timothy Chambers

individually asserts under G. L. c. 149, § 148A, was improper.

     Finally, we review the denial of the plaintiffs' request

for a protective order, brought in the wake of the defendants'

communications with putative class members in which they were

offered payments in exchange for signed releases.    While

discerning no abuse of discretion requiring reversal in these

circumstances, we acknowledge the legitimate concerns raised by

such communications and the authority of a judge to enter

appropriate protective orders when necessary.

     1.   Background.   Since this case concerns a grant of

summary judgment, we "summarize the relevant facts in the light

most favorable to the plaintiff[s]."    Somers v. Converged

Access, Inc., 454 Mass. 582, 584 (2009).    RDI Logistics, Inc.

(RDI), is a furniture delivery company headquartered in South

Easton.   Richard Deslongchamps, Jr., is the founder and

president of RDI.    The company provides "last mile" delivery

services for large retail furniture companies.5   The plaintiffs


     5
       "Last mile" delivery services consist of delivery from a
warehouse where furniture is stored to individual customers.
                                                                       4


delivered furniture for RDI for several years on a full-time

basis, working approximately sixty hours per week over five or

six days.      Since RDI only does business with independent

business entities, the plaintiffs incorporated prior to entering

into contracts with RDI.6      The contracts contained both

nonsolicitation and noncompete clauses, which effectively

prevented the plaintiffs from performing any delivery work for

RDI's competitors during their tenure with the company and for

three years thereafter.

       RDI's managers informed the plaintiffs that their contracts

would be terminated if they worked for any company other than

RDI.       The company also required the plaintiffs to wear uniforms

and to display signs on their trucks bearing either RDI's logo

or the logos of RDI's customers.       RDI deducted from the

plaintiffs' pay the costs of uniforms, truck lease payments, and

damage allegedly done to customers' property in the course of

their deliveries.      RDI also regulated how the plaintiffs loaded

the furniture on their trucks, which customers they delivered

to, and the specific windows of time in which they were to

deliver their goods to customers.       Finally, RDI required that

the plaintiffs follow prescribed routes to reach their customers


       6
       Johnson and his then partner,     Daryl McConaga, formed Dee &
Lee, LLC, in August, 2007. Chambers      formed Three T & C
Transport, Inc., in early 2009. RDI      filed a third-party
complaint for indemnity against both     of these entities.
                                                                   5


and use global positioning system devices to ensure that the

plaintiffs did not deviate from their assigned routes.

     After approximately four years of service, RDI terminated

its contract with Johnson's company in December, 2011, under

disputed circumstances.7   During the summer of 2013, Chambers

informed his fellow drivers at RDI that he suspected that RDI

was misclassifying them as independent contractors rather than

as employees.   In August, 2013, RDI informed Chambers that his

contract was subject to a sixty-day review period.8   On the

evening of September 18, 2013, Deslongchamps confronted Chambers

and accused him of attempting to file a lawsuit under the

independent contractor statute.   After a brief argument,

Deslongchamps fired Chambers.

     Two days later, the plaintiffs filed a class action

complaint against RDI and Deslongchamps, individually, alleging

misclassification.   In October, 2013, they filed an amended

complaint, adding a claim for unjust enrichment stemming from

the purported misclassification, as well as an individual claim

on behalf of Chambers alleging retaliation under G. L. c. 149,


     7
       Although the record is not clear on the circumstances
surrounding this issue, it appears that RDI terminated Johnson
for failing to wear his seat belt while making deliveries.
     8
       The parties alternatively refer to this notice as a "60-
day termination notice." It is not clear in the record whether
the notice explicitly provided for the termination of Chambers's
contract.
                                                                     6


§ 148A.    The defendants asserted two counterclaims for breach of

contract against Johnson, maintaining that he had violated a

release of claims against RDI that he signed upon his

termination.   They also filed a third-party complaint against

the plaintiffs' respective corporations, asserting that the

contracts between those corporations and RDI indemnified RDI

against any damages resulting from the plaintiffs' claims.

    In July of 2014, the parties engaged in an unsuccessful

mediation effort.    Three months later, as discovery was

underway, RDI sent a series of letters on an ex parte basis to

certain current and former RDI contractors.    Each letter

contained a check for $1,000 that would, if endorsed,

purportedly release all claims against RDI.    The two-page

letters, in essence, stated that two individuals had filed a

class action complaint against RDI in which they claimed that

they were misclassified as independent contractors.   The

letters, which contained the Superior Court case caption, noted

that although "RDI believes firmly that it has not acted

improperly with regard" to its classification of its workers, it

would offer "a one-time payment in exchange for a release" of

any claims relating, inter alia, to the classification of those

workers.

    On learning of these letters, the plaintiffs sought an

emergency protective order barring RDI from engaging in further
                                                                      7


communications with "putative class members."     They asked the

judge to strike "any alleged settlements obtained as the result

of the letters and checks" that had been mailed.     The motion was

denied.    A few months later, the plaintiffs filed a motion for

reconsideration of their emergency motion, claiming that an RDI

driver had informed the plaintiffs' counsel that he and his

fellow drivers feared they would lose their contracts with RDI

if they did not endorse the checks.     The judge denied that

motion.    The plaintiffs sought interlocutory review before a

single justice of the Appeals Court, which also was denied.

         Two weeks later, the plaintiffs moved for partial summary

judgment on their misclassification claim.     In response, the

defendants filed a cross motion for summary judgment on all of

the plaintiffs' claims, along with their claims against Johnson

and the plaintiffs' companies.     The judge denied the plaintiffs'

motion and allowed the defendants' motion on the ground that the

FAAAA preempted the independent contractor statute in its

entirety.9    The plaintiffs' complaint was dismissed, along with

the defendant's claims against Johnson and the plaintiffs'




     9
       The parties do not reference the plaintiffs' unjust
enrichment claim, and the judge did not provide a reason for its
dismissal. We assume that the claim was dismissed concurrently
with the misclassification claim. Accordingly, we reverse the
dismissal of that claim.
                                                                    8


companies.10   We allowed the plaintiffs' application for direct

appellate review.

     2.   Discussion.   a.   Summary judgment.   The defendants

claim that they are entitled to judgment as a matter of law on

all of the plaintiffs' claims.     They contend that the

plaintiffs' misclassification claim fails for two reasons.

First, they suggest that the statute is preempted by the FAAAA.

Second, they argue that the plaintiffs do not have standing

under the independent contractor statute because their contracts

with RDI were through corporate entities.     The defendants also

suggest that Chambers' retaliation claim fails because he does

not have standing unless he proves that he is an employee.

     i.   Standard of review.    "We review a grant of summary

judgment de novo to determine 'whether, viewing the evidence in

the light most favorable to the nonmoving party, all material

facts have been established and the moving party is entitled to

judgment as a matter of law.'"     DeWolfe v. Hingham Centre, Ltd.,

464 Mass. 795, 799 (2013), quoting Juliano v. Simpson, 461 Mass.


     10
       The judge dismissed the defendants' counterclaims against
Johnson and the plaintiffs' corporations because they were
rendered moot after summary judgment issued on the
misclassification claim. Given our reversal of the award of
summary judgment, the defendants' claims are no longer moot.
See Donahue v. Boston, 304 F.3d 110, 121 (1st Cir. 2002)
(reversing Federal District Court's denial of plaintiffs' motion
on mootness grounds, after having vacated that court's order
allowing summary judgment for defendant). Accordingly, we
vacate the dismissal of the defendants' counterclaims.
                                                                      9


527, 529-530 (2012).    Because we review this matter de novo, "no

deference is accorded the decision of the judge in the trial

court."    Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635,

637 (2012).11   The defendants, as the moving parties, bear the

"burden of establishing that there is no genuine issue as to any

material fact and that they are entitled to judgment as a matter

of law."   DeWolfe, supra.

     ii.   Misclassification claim.   A.   Independent contractor

statute.   The independent contractor statute "establishes a

standard to determine whether an individual performing services

for another shall be deemed an employee or an independent

contractor for purposes of our wage statutes."12     Somers v.

Converged Access, Inc., 454 Mass. 582, 589 (2009).      "Under this

standard, '"an individual performing any service" is presumed to

be an employee'" (citations omitted).      Sebago v. Boston Cab

Dispatch, Inc., 471 Mass. 321, 327 (2015).      "The purpose of the

independent contractor statute is 'to protect workers by

classifying them as employees, and thereby grant them the

benefits and rights of employment, where the circumstances

     11
       The plaintiffs ask this court to allow their motion for
summary judgment on each claim at issue before us. We decline
to do so. See Maxwell v. AIG Domestic Claims, Inc., 460 Mass.
91, 97 (2011) ("Denial of a motion for summary judgment is
interlocutory and hence not subject to an appeal as of right").
     12
       The independent contractor statute most recently was
amended in 2004. See St. 2004, c. 193, § 26. The statute was
first enacted in 1990. See St. 1990, c. 464.
                                                                    10


indicate that they are, in fact, employees" (citation omitted).

Depianti v. Jan-Pro Franchising Int'l, Inc., 465 Mass. 607, 620

(2013).

    To establish that a presumptive employee is actually an

independent contractor, an employer must prove that

         "(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."

G. L. c. 149, § 148B.    To "rebut the presumption of employment,"

an employer must satisfy all three of these prongs.     Depianti,

465 Mass. at 621.

    B.    The FAAAA.    In enacting the FAAAA in 1994, Congress

sought to deregulate the trucking industry.    See Dan's City Used

Cars, Inc. v. Pelkey, 133 S. Ct. 1769, 1775 (2013).     Congress

acted based on a finding "that [S]tate governance of intrastate

transportation of property had become 'unreasonably

burden[some]' to 'free trade, interstate commerce, and American

consumers.'"   Id., quoting Columbus v. Ours Garage & Wrecker

Serv., Inc., 536 U.S. 424, 440 (2002).     Toward that end,

Congress included a preemption clause in the statute that
                                                                    11


expressly preempts any State "law, regulation, or other

provision having the force and effect of law related to a price,

route, or service of any motor carrier . . . with respect to the

transportation of property."   49 U.S.C. § 14501(c)(1) (2012).

    "The critical question in any preemption analysis is always

whether Congress intended that [F]ederal [law] supersede [S]tate

law" (citation omitted).    Bay Colony R.R. v. Yarmouth, 470 Mass.

515, 518 (2015).   While Congress's intent to preempt State law

under the FAAAA is explicit, "that 'does not immediately end the

inquiry because the question of the substance and scope of

Congress'[s] displacement of [S]tate law still remains.'"       Id.,

quoting Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008).

    In order to determine this scope, we "focus first on the

statutory language, 'which necessarily contains the best

evidence of Congress['s] pre-emptive intent'" (citation

omitted).   Dan's City Used Cars, Inc., 133 S. Ct. at 1778.      The

breadth of the FAAAA's preemption clause is "purposefully

expansive."   Massachusetts Delivery Ass'n v. Coakley, 769 F.3d

11, 18 (1st Cir. 2014).    Any State laws "'having a connection

with, or reference to,' carrier '"rates, routes, or services,"

are pre-empted'" (citation omitted).    Rowe v. New Hampshire

Motor Transp. Ass'n, 552 U.S. 364, 370 (2008).

    Congress's overarching goal in establishing such expansive

preemption was twofold.    First, it aimed to "ensure
                                                                   12


transportation rates, routes, and services that reflect[ed]

'maximum reliance on competitive market forces,' thereby

stimulating 'efficiency, innovation, and low prices,' as well as

'variety' and 'quality'" (citation omitted).    Id. at 371.

Second, Congress wanted to sweep aside "a patchwork of [S]tate

service-determining laws, rules, and regulations" that would

undercut this goal.   Id. at 373.

      The United States Supreme Court has interpreted the FAAAA's

preemptive effect broadly, concluding that preemption occurs "at

least where [S]tate laws have a 'significant impact' related to

Congress'[s] deregulatory and pre-emption-related objectives"

(citation omitted).   Id. at 371.   Despite its expansive ambit,

however, the FAAAA's preemption is not unlimited.    State laws

that "affect fares in only a 'tenuous, remote, or

peripheral . . . manner'" are not preempted (citation omitted).

Id.

      The defendants contend that the FAAAA preempts the

independent contractor statute for two reasons.     First, they

contend that the FAAAA preempts the statute because the second

prong of G. L. c. 149, § 148B (prong two), dictates that motor

carriers such as RDI perform their services using employees

rather than independent contractors.   They also argue that prong

two cannot be severed from the statute because the Legislature

drafted the statute as a conjunctive test with three inseparably
                                                                   13


intertwined prongs.    Second, the defendants argue that the FAAAA

preempts the application of the independent contractor statute

to motor carriers such as RDI because enforcement of the

plaintiffs' misclassification claim would have an impermissible

impact on motor carriers' services.13

     C.   Prong two.   The defendants are correct that prong two

draws the independent contractor statute into the gravitational

pull of the FAAAA's preemption.    Prong two provides an

impossible standard for motor carriers wishing to use

independent contractors.    This de facto ban constitutes an

impermissible "significant impact" on motor carriers that would

undercut Congress's objectives in passing the FAAAA; the statute

containing prong two also forms part of an impermissible

"patchwork" of State laws due to its uniqueness.    See Rowe, 552

U.S. at 371, 373.

     A delivery driver for a motor carrier necessarily will be

performing services within "the usual course of the business of

the employer" whenever a court concludes that delivery services

     13
       Before turning to analysis, we denote the limited scope
of the defendants' challenge to the independent contractor
statute. The issue here is not whether the independent
contractor statute is facially preempted, but rather whether the
FAAAA preempts the independent contractor statute, in whole or
in part, as applied to motor carriers such as the defendants.
See, e.g., California Div. of Labor Standards Enforcement v.
Dillingham Constr., N.A., 519 U.S. 316, 319 (1997).
Accordingly, the application of the independent contractor
statute to entities other than motor carriers will be unaffected
by this decision.
                                                                      14


are part of its usual course of business.    See G. L. c. 149,

§ 148B (a) (2).    Prong two thereby, in essence, requires that

motor carriers providing delivery services, such as RDI, use

employees rather than independent contractors to deliver those

services.   As a result, motor carriers are compelled to adopt a

different manner of providing services from what they otherwise

might choose because prong two dictates the type of worker that

will provide the services.    This likely also would have a

significant, if indirect, impact on motor carriers' services by

raising the costs of providing those services.      See, e.g., G. L.

c. 151, § 1 (requiring that employers pay employees minimum

wage).   The statute containing prong two therefore contravenes

the objectives of Congress in enacting the FAAAA by

"substitut[ing] . . . its own governmental commands for

'competitive market forces' in determining (to a significant

degree) the services that motor carriers will provide."       Rowe,

552 U.S. at 372.

    Moreover, with prong two included, the statute contravenes

the congressional objective of preventing a "patchwork of

[S]tate service-determining laws."    Id. at 371.   Unlike the

first and third prongs, prong two "stands as something of an

anomaly" amongst State laws regulating the classification of

workers.    Schwann v. FedEx Ground Package Sys., Inc., 813 F.3d

429, 438 (1st Cir. 2016).    Very few States have enacted such a
                                                                    15


test, which explicitly hinges employee status on the connection

between the services performed by the worker and the employer's

usual course of business.    Id., and cases cited.   The

provision's distinctiveness both undercuts Congress's intent to

prevent "a patchwork of [S]tate service-determining laws, rules,

and regulations," Rowe, supra, and suggests that Congress did

not intend to allow such provisions to stand as a "type of pre-

existing and customary manifestation of the [S]tate's police

power."   Schwann, supra.

    D.    Severability of prong two.    The defendants take the

view that the prongs of the independent contractor statute are

nonseverable because they operate conjunctively and are

inextricably intertwined.    They argue that, given that prong two

of the independent contract statute triggers the FAAAA's

preemption, the entire statute, on this view, must fall.     This

contention fails for several reasons.

    When compelled to strike down part of a statute, the court

will, "as far as possible, . . . hold the remainder to be

constitutional and valid, if the parts are capable of separation

and are not so entwined that the Legislature could not have

intended that the part otherwise valid should take effect

without the invalid part."   Massachusetts Wholesalers of Malt

Beverages, Inc. v. Commonwealth, 414 Mass. 411, 420 (1993),

quoting Boston Gas Co. v. Department of Pub. Utils., 387 Mass.
                                                                     16


531, 540 (1982).    "On the other hand, '[i]f the court is unable

to know whether the Legislature would have enacted a particular

bill without the unconstitutional provision, it will not sever

the unconstitutional provision, but will strike the entire

statute'" (citation omitted).    Murphy v. Commissioner of the

Dep't of Indus. Accs., 418 Mass. 165, 169 (1994).

    The initial inquiry in determining the severability of the

independent contractor statute is whether the statute is

"capable of separation."    Massachusetts Wholesalers of Malt

Beverages, Inc., 414 Mass. at 420.    A statute is capable of

separation when, as here, the severed provision "is not so

connected with and dependent upon other clauses of the act as to

constitute an essential factor of the whole."    Petition of

Worcester County Nat'l Bank of Worcester, 263 Mass. 394, 400

(1928).    Although the prongs of the independent contractor

statute are conjunctive, they operate independently of one

another.   The statute as severed would provide two independent

tests that motor carriers would have to meet in order to

establish that their workers are independent contractors.

    The defendants contend nonetheless that the statute is "so

entwined that the Legislature could not have intended that the

part otherwise valid should take effect without the invalid

part" (citation omitted).    Murphy, 418 Mass. at 169.   While the

independent contractor statute is itself silent on the issue of
                                                                    17


severability, the Legislature has stated generally that "[t]he

provisions of any statute shall be deemed severable, and if any

part of any statute shall be adjudged unconstitutional or

invalid, such judgment shall not affect other valid parts

thereof."   G. L. c. 4, § 6, Eleventh.   There is, then, a

presumption in favor of the severability of the statute.      See

Peterson v. Commissioner of Revenue, 444 Mass. 128, 138 (2005).

    The question thus becomes whether upholding the statute as

severed would frustrate the legislative purpose of the

independent contractor statute.   That purpose is "to protect

workers by classifying them as employees, and thereby grant them

the benefits and rights of employment, where the circumstances

indicate that they are, in fact, employees."   Taylor v. Eastern

Connection Operating, Inc., 465 Mass. 191, 198 (2013).     In

enacting the statute, the Legislature intended to provide

greater protection than did the common-law "right to control"

test that previously governed misclassification claims.      See,

e.g., Commonwealth v. Savage, 31 Mass. App. Ct. 714, 717 (1991).

    Since the "right to control" test is incorporated in the

first prong of the statute, the practical effect of striking the

statute if it were not severable would be to eliminate the third

prong, the so-called "independent business" test.   The

elimination of that test, and the return to the status quo ante,

cannot be readily reconciled with the Legislature's intent to
                                                                  18


provide additional safeguards for the Commonwealth's workers

beyond that test.   We agree with the United States Court of

Appeals for the First Circuit that the Legislature would have

preferred "two-thirds of this loaf over no loaf at all" in order

to provide the most protection for workers in the Commonwealth.

See Schwann, 813 F.3d at 441 (concluding independent contractor

statute is severable under Massachusetts law).14

     E.   The statute as severed.   The defendants contend in the

alternative that the FAAAA preempts the independent contractor

statute, even as severed, because the enforcement of the

plaintiffs' claims would have some impact on the defendants'

services.

     The statute as severed, applying only the first and third

prongs, does not have "a 'significant impact' related to

Congress'[s] deregulatory and pre-emption-related objectives"

(citation omitted), Rowe, 552 U.S. at 371, because it does not

target or restrict motor carriers in any way.   Motor carriers,


     14
       The defendants point to several instances in which the
Legislature has considered and rejected amendments to the
independent contractor statute that purportedly would have had
the effect of rendering prong two severable. None of these
amendments, however, directly addressed the issue of
severability. Rather, they were attempts to substantively alter
the provisions of the statute. We cannot conclude that, in
rejecting these proposed amendments, the Legislature intended
that the independent contractor statute be nonseverable. Cf.
Cook v. Patient Edu, LLC, 465 Mass. 548, 555 n. 14 (2013) ("We
do not draw conclusions concerning the intent of the Legislature
based on the failure to enact a subsequent amendment").
                                                                  19


like any other industry, may structure their business model to

use either independent contractors or employees.    The first

prong requires that an employer prove that a worker is "free

from control and direction in connection with the performance of

the service," both contractually and factually, in order to

establish that a worker is an independent contractor.    See G. L.

c. 149, § 148B (a) (1).    The third prong requires, in turn,

that, to be an independent contractor, "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."    G. L. c. 149, § 148B (a)

(3).    Unlike prong two, there is nothing intrinsic to these

provisions that prevents motor carriers from using independent

contractors.    To the extent that the first and third prongs have

an effect on motor carriers, we conclude that such an effect is

too "indirect, remote, and tenuous" to trigger the FAAAA's

preemption.    See, e.g., Californians For Safe & Competitive Dump

Truck Transp. v. Mendonca, 152 F.3d 1184, 1189 (9th Cir. 1998),

cert. denied, 526 U.S. 1060 (1999) (upholding California's

prevailing wage law against FAAAA preemption claim).

       Moreover, the statute as severed represents exactly the

sort of traditional exercises of State police power where

preemption is presumptively disfavored.    See New York State

Conference of Blue Cross & Blue Shield Plans v. Travelers Ins.
                                                                  20


Co., 514 U.S. 645, 655 (1995) ("where [F]ederal law is said to

bar [S]tate action in fields of traditional [S]tate

regulation, . . . we have worked on the 'assumption that the

historic police powers of the States were not to be superseded

by the Federal Act unless that was the clear and manifest

purpose of Congress'" [citation omitted]).   While the uniqueness

of prong two, and its significant impact on motor carriers,

suffices to overcome this presumption, the statute with only

prongs one and threethe first and third prongs falls into the

category of "generally applicable background regulations" that

Congress presumptively does not intend to preempt.    See Dilts v.

Penske Logistics, LLC, 769 F.3d 637, 646 (9th Cir. 2014), cert.

denied, 135 S. Ct. 2049 (2015).

     Finally, without prong two, the statute contains only

commonly used State and Federal tests of employment, indicating

that it does not fall within the intended scope of the FAAAA's

preemption.15   In enacting the FAAAA, Congress was concerned with


     15
       At least sixteen other States have enacted a statute
using similar language to that in the first and third prongs of
G. L. c. 149, § 148B -- the right to control and independent
business tests -- to determine whether workers are employees or
independent contractors. See Ark. Code Ann. § 11-10-210(e)
(2016); Colo. Rev. Stat. § 8-70-115(1)(b) (2016); Conn.
Gen. Stat. § 31-222(a)(1)(B) (2016); Del. Code Ann. tit. 19,
§ 3302(10) (2016); Idaho Code Ann. § 72-1316(4) (2016);
La. Rev. Stat. Ann. § 23:1472(12)(E) (2016); Me. Rev. Stat.
tit. 26, § 1043(11)(E) (2016); Nev. Rev. Stat. § 612.085 (2016);
N.M. Stat. Ann. § 51-1-42(F)(5) (2016); 43 Pa. Stat. Ann.
                                                                 21


State laws that created a "patchwork" of differing State

regulations that would interfere with "the competitive

marketplace."   Rowe, 552 U.S. at 373.   State laws that are "more

or less nationally uniform" do not pose a "patchwork problem."

Schwann, 813 F.3d at 440.

    The defendants' contention that the statute if severed

nonetheless would be preempted rests on the untenable view that

the FAAAA preempts any State regulation that, if enforced, would

have any impact on motor carriers.   In advancing this


§ 753(l)(2)(B) (2016); S.D. Codified Laws § 61-1-11 (2016);
Tenn. Code Ann. § 50-7-207(e)(1) (2016); Utah Code Ann. § 35A-4-
204(3) (LexisNexis 2016); Vt. Stat. Ann. tit. 21, § 1301(6)(B)
(2016); Wash. Rev. Code § 50.04.140 (2016); W. Va. Code § 21A-
1A-16(7) (2016).

     Additionally, the test to determine employment under the
Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (2012) (FLSA),
also includes analysis similar to the first and third prongs of
G. L. c. 149, § 148B. See, e.g., Donovan v. Brandel, 736 F.2d
1114, 1117, 1120 (6th Cir. 1984) (noting that degree of
purported employer's control and economic dependence of worker
on employer are both relevant to determining employment under
FLSA). In a majority of States, the common-law test
incorporates the right to control analysis of the first prong,
and in some States, the test also incorporates the independent
business analysis of the third prong. See Feary, Independent
Contractor Employment Classification: A Survey of State and
Federal Laws in the Motor Carrier Industry, 35 Transp. L.J. 139,
146-148 (2008). Finally, the language in the first and third
prongs is integral to parts of the Federal Internal Revenue
Service test to determine employment. See Rev. Rul. 87-41,
1987-1 C.B. 296 (setting forth twenty-factor test to determine
employment status, which includes level of control exercised by
employer and whether worker works full time for that employer).
                                                                    22


contention, the defendants rely primarily on the United States

Supreme Court's decision in Northwest, Inc. v. Ginsberg, 134

S. Ct. 1422 (2014).    They mistakenly interpret Ginsberg as a

pronouncement that the application of any State law to motor

carriers is preempted if it would have even a tangential impact

on their provision of services.    The Ginsberg Court held that

the FAAAA preempted a plaintiff's State law claim for breach of

the covenant of good faith and fair dealing against an airline

for terminating his membership in its frequent flyer program.

See id. at 1426-1427.    The claim at issue in Ginsberg, however,

directly concerned services provided by the airline -- admission

to the frequent flyer program and its attendant benefits.     See

id. at 1430-1431.    Hence, the forbidden connection under the

FAAAA was obvious:    the plaintiffs' requested relief consisted

of better services at a lower rate.

    What Ginsberg teaches is that State laws are "more likely

to be preempted when they operate at the point where carriers

provide services to customers at specific prices."     Dilts, 769

F.3d at 646.   Here, by contrast, the plaintiffs'

misclassification claim is not directly related to the

defendant's "services," but relates instead to a "generally

applicable background regulation[] . . . several steps removed

from prices, routes, or services."    Id.   This tenuous connection

to services does not, without more, fall within the FAAAA's
                                                                     23


preemptive scope.    See New York State Conference of Blue Cross &

Blue Shield Plans, 514 U.S. at 655 ("If 'relate to' were taken

to extend to the furthest stretch of its indeterminacy,

then . . . Congress's words of limitation [would be] a mere

sham").   If the FAAAA preempted any regulation that could result

in an effect on motor carriers, the defendants would be exempt

from all State regulation, a result that the FAAAA clearly does

not countenance.16   See Dan's City Used Cars, Inc., 133 S. Ct. at

1778 ("the breadth of the words "related to" [in the FAAAA] does

not mean the sky is the limit").

     Because there are material facts in dispute as to the

plaintiffs' claims under the statute as severed, summary

judgment should not have been allowed on the plaintiffs'

misclassification claim.

     F.   Plaintiffs' standing.    The defendants contend that the

grant of summary judgment on the plaintiffs' misclassification

claims was warranted for the separate reason that the plaintiffs


     16
       Indeed, the FAAAA's preemption clause explicitly exempts
several areas of State regulation that could result in an
increase in costs for motor carriers. For example, the FAAAA
explicitly allows State regulation of motor carriers related to,
inter alia, "motor vehicles," "highway route controls,"
"limitations based on the size or weight of the motor vehicle,"
and "insurance requirements." See 49 U.S.C. § 14501(c)(2)(A).
This list was not "intended to be all inclusive, but merely to
specify some of the matters that are not 'prices, rates or
services' and which are therefore not preempted." H.R. Conf.
Rep. 103-677, 103d Cong., 2d sess. (1994), reprinted in 1994
U.S.C.C.A.N. 1715, 1756.
                                                                   24


lack standing to bring such claims.   The defendants maintain in

this regard that the protections of the independent contractor

statute apply only to "individuals" who perform services as

such.   See G. L. c. 149, § 148B ("For the purpose of this

chapter and chapter 151, an individual performing any service,

except as authorized under this chapter, shall be considered to

be an employee . . .").   They argue that the plaintiffs, in

contracting with RDI through corporate entities, foreclosed any

claim for misclassification.   Because the relevant facts are in

dispute, however, summary judgment on this basis is unwarranted.

     The defendants urge that the plaintiffs ceded standing

under the independent contractor statute because they

purposefully chose and financially benefited from using the

corporate form.   They construe the statutory reference to

"individuals who provide services" as meaning that only workers

who provide services as individuals have standing.   In so

limiting the scope of the statute, the defendants cite to an

advisory from the Attorney General stating that "legitimate

independent contractors and business-to-business relationships

in the Commonwealth . . . will not be adversely impacted by [the

independent contractor statute]."   See Advisory 2008/1, Attorney

General's fair labor and business division.

     The statutory reference to "individuals who provide

services," however, does not expressly exclude individuals who
                                                                   25


provide services through a corporation.   The Attorney General's

advisory, which the defendants emphasize reflects this

understanding, notes as well that "businesses . . . created and

maintained in order to avoid [application of the independent

contractor statute]" would not immunize employers against

enforcement.17   The Attorney General articulated certain factors

material to a determination whether the corporate form

represents a legitimate business-to-business relationship, or

one whose raison d'etre is to prevent the classification of

workers as employees:

      "[Whether] the services of the alleged independent
      contractor are not actually available to entities beyond
      the contracting entity, even if they purport to be so;
      whether the business of the contracting entity is no
      different than the services performed by the alleged
      independent contractor; or the alleged independent
      contractor is only a business requested or required to be
      so by the contracting entity."

Id.   This nonexhaustive list of factors properly focuses on

whether the worker's use of the corporate form was at the

worker's behest or forced upon the worker by an employer in

order to misclassify him or her.   See Anderson vs.




      17
        "Insofar as the Attorney General's office is the
department charged with enforcing the wage and hour laws, its
interpretation of the protections provided thereunder is
entitled to substantial deference, at least where it is not
inconsistent with the plain language of the statutory
provisions." Smith v. Winter Place LLC, 447 Mass. 363, 367-368
(2006).
                                                                      26


Homedeliveryamerica.com, Inc., U.S. Dist. Ct., No. 11-10313-GAO

(D. Mass. Dec. 30, 2013).

       Here, the plaintiffs have alleged enough facts to establish

a genuine issue of material fact as to whether they have

standing under the independent contractor statute.      They assert

that they formed companies only to be able to contract with RDI,

did not perform services for any companies other than RDI, and

were forbidden from performing work for any companies other than

RDI.    These allegations raise the question whether the

plaintiffs incorporated for their own benefit, as the defendants

suggest, or whether RDI required them to incorporate in order to

misclassify them as independent contractors.     Summary judgment

is precluded on this basis.

       iii.   Retaliation claim.   Apparently due to the grant of

summary judgment to the defendants dismissing the plaintiffs'

misclassification claim on preemption grounds, Chambers's

retaliation claim also was dismissed.      The parties disagree

whether the retaliation claim is independent of the

misclassification claim, and whether it properly was dismissed.

       General Laws c. 149, § 148A, provides that "[a]ny employer

who discharges or in any other manner discriminates against any

employee because such employee . . . has instituted . . . any

proceeding under or related to this chapter . . . shall have

violated this section."     Chambers claims that his contract with
                                                                   27


RDI was terminated in retaliation for the assertion of his

rights under the independent contractor statute, and that

irrespective of whether he succeeds in establishing that he was

misclassified as an independent contractor, he may pursue his

claim for retaliation.   By contrast, the defendants maintain

that Chambers's retaliation claim properly was dismissed along

with the misclassification claim, because G. L. c. 149, § 148A,

only applies to workers classified as employees under the

independent contractor statute.   Insofar as we vacate the

allowance of summary judgment on the plaintiffs'

misclassification claim, Chambers's retaliation claim is

revived, even under the defendants' suggested interpretation of

the statute.18   We leave for another day resolution of this

dispute as to statutory interpretation.

     b.   Emergency motion for protective order and motion for

reconsideration.   The plaintiffs argue that the judge erred in

denying their emergency motion for a protective order to enjoin

RDI from contacting its workers and to invalidate any releases

that were executed.   They contend that the judge was obligated

to allow their requests because the defendants' communications

with its workers were misleading and coercive.     We review the

judge's denial of the motions to determine whether either


     18
       The plaintiffs could succeed in establishing that they
are misclassified employees.
                                                                     28


constituted an abuse of his discretion.   See Merles v. Lerner,

391 Mass. 221, 226 (1984).   An abuse of discretion occurs when

the judge's decision rests upon "a clear error of judgment in

weighing the factors relevant to the decision . . . such that

[it] falls outside the range of reasonable alternatives," or

when the judge's decision constitutes a "significant error of

law" (citations omitted).    Commonwealth v. Ellis, 475 Mass. 459,

476 (2016).

    The plaintiffs filed their motion under Mass. R. Civ. P. 23

(d), 365 Mass. 767 (1974), which provides, in relevant part,

that a court "may require such security and impose such terms as

shall fairly and adequately protect the interests of the class

in whose behalf the action is brought or defended."     "We have

noted that [rule 23] '"was written in the light of [Fed. R. Civ.

P. 23]," . . . hence case law construing the Federal rule is

analogous and extremely useful'" (citations omitted).      Longval

v. Commissioner of Correction, 448 Mass. 412, 417 n.9 (2007).

    In Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981), where

a protective order had been issued pursuant to Fed. R. Civ. P.

23(d), the United States Supreme Court concluded that "[b]ecause

of the potential for abuse, a . . . court has both the duty and

the broad authority to exercise control over a class action and

to enter appropriate orders governing the conduct of counsel and

parties."   A protective order is appropriate to prevent
                                                                     29


"[m]isleading or coercive communications with potential class

members that could or are intended to undermine participation in

a class or collective action."     Davine vs. Golub Corp., U.S.

Dist. Ct., No. 14-30136-MGM (D. Mass. Oct. 24, 2014), citing

Gulf Oil Co., supra at 102.     In this regard, courts should

scrutinize with care instances in which employers send

communications to class and putative class members who are their

workers, given the heightened possibility of coercion between an

employer and its workers.     See Kleiner v. First Nat'l Bank of

Atlanta, 751 F.2d 1193, 1202 (11th Cir. 1985).      Moreover, when

employers do send communications to class members, putative or

otherwise, "it is critical that the class receive accurate and

impartial information regarding the status, purposes and effects

of the class action."   Id.

    Nonetheless, the United States Supreme Court made clear

that a court's authority to issue protective orders is bound by

the limits of the First Amendment to the United States

Constitution.   See Gulf Oil Co., 452 U.S. at 103     (striking down

protective order as invalid restraint on expression).

Accordingly, the issuance of a protective order "should be based

on a clear record and specific findings that reflect a weighing

of the need for a limitation and the potential interference with

the rights of the parties."     Id. at 101.   Additionally, the
                                                                     30


issuance of a protective order must be "justified by a

likelihood of serious abuses."    Id. at 104.

       In denying the plaintiffs' motions, the judge appears

adequately to have taken these factors into account.     The judge

denied the plaintiffs' initial emergency motion because he

concluded that "the subject correspondence issued to present and

former drivers [for RDI] is neither misleading [n]or coercive

and amply notifies recipients of the pending litigation."      The

plaintiffs' motion for reconsideration asserted similar grounds

as their initial motion, with the addition of allegations that

Deslongchamps had terminated Chambers in retaliation for

asserting his rights under the independent contractor statute.

The motion stated also that several unnamed affiants contacted

the plaintiffs' counsel, stating that they feared retaliation

from RDI if they did not endorse the checks.    The judge denied

the motion for reconsideration because "there [had] not been a

sufficient showing that Chambers was terminated in violation of

[G. L. c. 149, § 148A,] or that the defendants engaged in

illegal coercive tactics in connection with the settlement of

individual claims."

       The judge's determination that the letters were not

coercive or misleading such that they merited the issuance of a

protective order was not unreasonable based on the record before

him.    The letters contained a citation to the plaintiffs' class
                                                                    31


action and they fairly described the status of the case.

Additionally, the letters explicitly stated that RDI would not

consider the employees' decision whether to endorse the check in

business dealings unrelated to the matter.   The letters also

advised the recipients that they may wish to consult with an

attorney before deciding whether to endorse the check.    Finally,

the fact that several drivers contacted the plaintiffs' counsel

suggests that the letters provided sufficient information to

allow such contact.

     Absent further information suggesting that the

communication was misleading or coercive, we conclude that the

judge, on the record before him, did not abuse his discretion in

denying the emergency motion for a protective order or the

motion for reconsideration.    We do not express a view as to the

validity of the releases in question.19

     3.   Conclusion.   The denials of the emergency motion for a

protective order and the motion for reconsideration are

affirmed, and the grant of summary judgment is vacated.    The

     19
       The validity of such releases and the judge's decision on
a preliminary basis not to issue a protective order invalidating
them are quite different matters. We note that releases "will
be enforceable as to the statutorily provided rights and
remedies conferred by the Wage Act only if such an agreement is
stated in clear and unmistakable terms." Crocker v. Townsend
Oil Co., 464 Mass. 1, 14 (2012). "[T]he release must be plainly
worded and understandable to the average individual, and it must
specifically refer to the rights and claims under the Wage Act
that the employee is waiving." Id. Whether the releases here
satisfy such criteria is not before us.
                                                               32


matter is remanded to the Superior Court for further proceedings

consistent with this opinion.

                                   So ordered.
