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SJC-11661

    NESTO MONELL & others1    vs.   BOSTON PADS, LLC, & others.2



            Suffolk.    December 2, 2014. - June 3, 2015.

  Present:     Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.


Independent Contractor Act. Broker.      License. Real Property,
     License to sell. Labor, Wages.      Massachusetts Wage Act.



     Civil action commenced in the Superior Court Department on
October 17, 2011.

     A motion for partial summary judgment was heard by Robert
C. Cosgrove, J., and entry of final judgment was ordered by
Edward P. Leibensperger, J.

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


     Hillary Schwab (Brant Casavant with her) for the
plaintiffs.


     1
       Jonathan Gibson, Rachael Butcher, Benjamin Smith, Lindsey
Burnes, and Ann McGovern. The plaintiffs sued on behalf of
themselves and others similarly situated.
     2
       Jacob Realty, LLC; NextGen Realty, Inc.; RentMyUnit.Com,
Inc., doing business as Boardwalk Properties; Demetrios
Salpoglou; and Yuan Huang.
                                                                     2


     Stephen M. Perry (Robert S. Kutner with him) for the
defendants.
     Ian O. Russell & Nicole Horberg Decter, for Massachusetts
Employment Lawyers Association & another, amici curiae,
submitted a brief.
     Philip S. Lapatin & Nathaniel F. Hulme, for Massachusetts
Association of Realtors & another, amici curiae, submitted a
brief.


     HINES, J.   We granted the plaintiffs' application for

direct appellate review to determine whether the independent

contractor statute, G. L. c. 149, § 148B, which makes it a

violation of the statute to fail "to properly classify an

individual as an employee," applies to real estate salespersons

licensed under, and affiliated with and working for a licensed

brokerage firm pursuant to G. L. c. 112, § 87RR.     A Superior

Court judge concluded that the independent contractor statute

did not apply in these circumstances to the salespersons in this

industry.   We affirm.

     1.   Background.    We summarize the material undisputed

facts.    The defendants Jacob Realty, LLC (Jacob Realty); NextGen

Realty, Inc. (NextGen); and RentMyUnit.Com, Inc., doing business

as Boardwalk Properties (Boardwalk Properties) (collectively,

business entities), are licensed Massachusetts real estate

brokerage firms that are in the business of renting and selling

real estate in Massachusetts.3    The defendants Demetrios


     3
       The defendants deny that defendant Boston Pads, LLC,
operates a real estate office and that it had any real estate
                                                                    3


Salpoglou and Yuan Huang are members of Jacob Realty and

shareholders of NextGen and Boardwalk Properties, and are

involved in the operations of these business entities.

Salpoglou serves as the broker of record for the business

entities.

     The plaintiffs Nesto Monell, Jonathan Gibson, Rachael

Butcher, and Lindsey Burnes were licensed real estate

salespersons who worked for Jacob Realty under its real estate

broker's license.   The plaintiff Ann McGovern was a licensed

real estate salesperson who worked for NextGen under its real

estate broker's license.   The plaintiff Benjamin Smith was a

licensed real estate salesperson who worked for Boardwalk

Properties under its real estate broker's license.

     Throughout the course of their relationship, the defendant

business entities classified the plaintiffs as independent

contractors.4   The defendant entities required the plaintiffs to




agents associated with it. The defendants contend that Boston
Pads, LLC, is a professional consulting services firm that does
not trade, lease, buy, or sell real estate for commissions. For
the purpose of this opinion, when we refer to the defendants or
to the business entities, such references shall not include
Boston Pads, Inc.
     4
       The defendants assert that the business entities are
legally distinct entities and that a salesperson associated with
one business entity was not otherwise associated with another
business entity. This assertion has no bearing on the issues
before us. Therefore, we decline to address the point.
                                                                    4


work sixty "front desk hours" during training5 and, thereafter,

in some cases complete monthly "office hours" duty, which

involved answering telephone calls from, and greeting,

prospective clients.6   The salespersons were able to select the

"office hours" that they wished to work.   The business entities,

however, allowed salespersons only one shift change every two

months.

     At the commencement of their relationship with the business

entities, the plaintiffs signed nondisclosure, nonsolicitation,

and noncompete agreements7 and were required to undergo a

training program.   The business entities encouraged the

plaintiffs to purchase a day planner and required them to obtain


     5
       During "front desk hours," the business entities asked
salespersons to perform "warm calling," which included speaking
with landlords, entering information into the business entities'
database, and arranging times to meet with landlords to obtain
keys and visit properties.
     6
       Specifically, the training guide provided that during
office hours shifts the salespersons were to answer the
telephone, greet clients and landlords, take out the trash,
update facsimiles, telephone landlords, acquire new listings,
and answer agent telephone calls. Under the guide, salespersons
were prohibited during this time to schedule showings of
available apartments for rent or property for sale.
     7
       Various forms used by the business entities, including an
application for employment, an equal opportunity statement, and
an antiharassment policy, contained language referencing the
salesperson's "employment" with the business entities. The
defendants admit that the various forms were used by them at one
time or another, but make no admissions regarding whether the
forms were used with the named plaintiffs.
                                                                     5


a cellular telephone with a "617" area code,8 to adhere to a

dress code, and to submit to various disciplinary actions if

they did not meet their productivity goals.

     The defendant entities compensate their salespersons

pursuant to a commission policy.    Under the policy salespersons

are paid on a "commission-only basis" and expressly will not be

treated as employees "with respect to compensation for taxes or

any other purpose."   A commission is earned on completion by the

salesperson of a rental or sales transaction involving a

client's real estate.   The commission due to the salesperson

usually amounts to a percentage (typically fifty per cent) of a

transaction's gross commission, less any applicable deductions.9

The business entities receive the balance as their portion of

the fee charged to the client.     Commissions are paid "only when

a transaction is completed in its entirety" as defined by the

policy.   Pursuant to the policy, the business entities "will

issue [a] Form 1099-MISC" to each salesperson and each

     8
       The business entities instructed salespersons on what
information they must enter into their cellular telephones and
on how they were to answer their telephones.
     9
       Deductions include a monthly "desk fee" of fifty dollars
for part-time salespersons and seventy-five dollars for full-
time salespersons. For salespersons who elect to participate in
a "farm program," whereby a contractor would manually update a
salesperson's real estate listings on Web sites, a deduction of
five dollars per day also is assessed. There is a dispute in
the record whether the plaintiffs were compelled to elect to
join the farm program.
                                                                   6


salesperson "agrees to provide [the business entities] with a

signed W-9 [form]."   Thus, the plaintiffs were responsible for

paying their own taxes.

     In 2011, the plaintiffs filed a complaint against the

defendants in the Superior Court.   As relevant here, the

plaintiffs alleged that the defendants violated the independent

contractor statute by misclassifying them as independent

contractors when they actually were employees.10   On this count

of the complaint, the plaintiffs moved for partial summary

judgment, which the judge denied.   The judge then granted

partial summary judgment in favor of the defendants.11    The judge

determined that there is a conflict between the independent

contractor and real estate licensing statutes insofar as a real

estate salesperson would not be able to satisfy all three

indicia of an independent contractor relationship while

simultaneously complying with the real estate licensing statute.

Based on his determination that the real estate licensing


     10
       The plaintiffs also alleged that the defendants failed to
pay them wages owed under G. L. c. 149, § 148; failed to
compensate them in accordance with minimum wage laws pursuant to
G. L. c. 151, § 20; and failed to pay them time and one-half for
all hours worked over forty hours per week in violation of G. L.
c. 151, § 1A. The judge did not rule on these claims.
     11
       The plaintiffs then filed an assented-to motion to
dismiss the remaining counts of their complaint without
prejudice should the judge's ruling be reversed on appeal, which
was allowed.
                                                                    7


statute was more recently amended and is more specific than the

independent contractor statute, the judge concluded that,

pursuant to statutory construction principles, the independent

contractor statute did not control, meaning that the defendants

did not fail properly to classify the plaintiffs as employees

and therefore could not be liable for a violation of G. L.

c. 149, § 148B.

    2.     Standard of review.   Summary judgment is appropriate

where there are no genuine issues of material fact in dispute

and the moving party is entitled to judgment as a matter of law.

See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

(1991); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404

(2002).    Moreover, "[w]e exercise de novo review over questions

of statutory construction."      Atlanticare Med. Ctr. v.

Commissioner of the Div. of Med. Assistance, 439 Mass. 1, 6

(2003).    Because the issue before us is one of statutory

construction, we begin by providing an overview of the relevant

statutes.

    3.     Statutory overview.   a.   Independent contractor

statute.    The Commonwealth's wage laws are set forth in

provisions in G. L. c. 149 (Wage Act).     Within the Wage Act is

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

Effective July 19, 2004, the Legislature amended § 148B by
                                                                    8


striking out its language and replacing it in its entirety.   See

St. 2004, c. 193, § 26.   The statute has not since been amended.

    The independent contractor statute, states, in relevant

part:

         "(a) For the purpose of this chapter and chapter 151[12]
    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.

         "(b) The failure to withhold federal or state income
    taxes . . . 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
    fails to comply, in any respect, with [G. L. c. 149], or
    [G. L. c. 151, § 1, 1A, 1B, 2B, 15, or 19], or [G. L.
    c. 62B],[13] shall be punished and shall be subject to all of
    the criminal and civil remedies, including debarment [from
    public bidding], as provided in [§ 27C] of this chapter.

    12
       General Laws c. 151 is known as the minimum fair wage law
and has provisions pertaining to the minimum fair wage as well
as overtime pay. G. L. c. 151, §§ 1, 1A, 1B, 22.
    13
       General Laws c. 62B sets forth the Commonwealth's wage
withholding laws.
                                                                    9


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

G. L. c. 149, § 148B.

      As noted above, the independent contractor statute was

adopted as part of St. 2004, c. 193, which is entitled, "An Act

further regulating public construction in the Commonwealth."

The act's emergency preamble states the purpose of the act is

"to regulate further public construction in the commonwealth."

Id.   Although the statute was part of legislation making changes

to the public construction industry, the Legislature kept it in

c. 149, thus leaving it applicable to a wide range of

industries.   See Lipsitt v. Plaud, 466 Mass. 240, 245 (2013)

(since enactment of Wage Act in 1886, Legislature has broadened

scope of employees covered).15

      We have stated that 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


      14
       General Laws c. 152 pertains to worker's compensation
benefits.
      15
       Under the Wage Act provisions in G. L. c. 149, the
Legislature has also broadened the type of eligible compensation
covered, extending coverage to commissions that are "definitely
determined" and "due and payable." Lipsitt v. Plaud, 466 Mass.
240, 245 & n.8 (2013), quoting St. 1943, c. 467.
                                                                     10


employment, where the circumstances indicate that they are, in

fact, employees."    Depianti v. Jan-Pro Franchising Int'l, Inc.,

465 Mass. 607, 620 (2013), quoting Taylor v. Eastern Connection

Operating, Inc., 465 Mass. 191, 198 (2013).       See Cumpata v. Blue

Cross Blue Shield of Mass., Inc., 113 F. Supp. 2d 164, 168 (D.

Mass. 2000) ("Wage Act is meant to protect employees from the

dictates and whims of shrewd employers").     Indeed,

            "[m]isclassification not only hurts the individual
       employee; it also imposes significant financial burdens on
       the Federal government and the Commonwealth in lost tax and
       insurance revenues. Moreover, it gives an employer who
       misclassifies employees as independent contractors an
       unfair competitive advantage over employers who correctly
       classify their employees and bear the concomitant financial
       burden."

Somers v. Converged Access, Inc., 454 Mass. 582, 593 (2009).

       To this end, the independent contractor statute

"establishes a framework for determining whether a worker is an

employee or an independent contractor."     Depianti, 465 Mass. at

621.    The statute establishes a presumption that "an individual

performing any service" is an employee.     Id.    See G. L. c. 149,

§ 148B (a) ("an individual performing any service . . . shall be

considered to be an employee").    Next, the statute "lays out

three indicia [or factors] of an independent contractor

relationship, all three of which must be established to rebut

the presumption of employment."    Depianti, supra.     In

interpreting the statute, we have stated that, "[i]n light of
                                                                    11


the statute's broad remedial purpose, 'it would be an error to

imply . . . a limitation where the statutory language does not

require it.'"    Id., quoting Psy-Ed Corp. v. Klein, 459 Mass.

697, 708 (2011).

     b.    Real estate licensing and registration scheme.   General

Laws c. 112, §§ 87PP through 87DDD½, and G. L. c. 112, §§ 65A

through 65E, set forth the licensing and registration provisions

governing real estate brokers and salespersons.16   A real estate

"broker," for purposes here, is defined as including:

     "any person who for another person and for a fee,
     commission or other valuable consideration, or with the
     intention or in the expectation or upon the promise of
     receiving or collecting a fee, commission or other valuable
     consideration, does any of the following: -- sells,
     exchanges, purchases, rents or leases, or negotiates, or
     offers, attempts or agrees to negotiate the sale, exchange,
     purchase, rental or leasing of any real estate, or lists or
     offers, attempts or agrees to list any real estate, or buys
     or offers to buy, sell or offers to sell . . . real
     estate."

G. L. c. 112, § 87PP.    In contrast, a real estate "salesman" or

salesperson is "an individual who performs any act or engages in

any transaction included in the foregoing definition of a

broker, except the completing of the negotiation of any

agreement or transaction which results or is intended to result

in the sale, exchange, purchase, renting or leasing of any real

estate."   Id.   Both brokers and salespersons are required to be

     16
        Regulations governing real estate brokers and
salespersons appear at 254 Code Mass. Regs. §§ 2.00 through 7.00
(2013).
                                                                     12


licensed.   G. L. c. 112, § 87RR.   "The examination for a

[salesperson's] license shall be based upon the same general

subject matter as for a broker's license, but shall be more

elementary in nature."    G. L. c. 112, § 87SS.

    Real estate salespersons must conduct business with, or be

affiliated with, a licensed broker.    G. L. c. 112, § 87RR.   See

254 Code Mass. Regs. § 3.00(6) (1998) ("A licensed salesperson

must be engaged by a licensed broker and a licensed salesperson

shall not conduct his own real estate business").    A real estate

salesperson may affiliate with only one broker.    G. L. c. 112,

§ 87VV (when real estate salesperson affiliates with broker,

salesperson "shall not act as [salesperson] for any other

licensed broker while so affiliated, nor accept any valuable

consideration for the performance of any act as a real estate

[salesperson] from any person except the broker with whom he [or

she] is affiliated").    Concerning the relationship between the

broker and his or her affiliated salesperson, § 87RR provides in

relevant part:

         "No [salesperson] may conduct or operate his [or her]
    own real estate business nor act except as the
    representative of a real estate broker who shall be
    responsible for the [salesperson] and who must approve the
    negotiation and completion by the [salesperson] of any
    transaction or agreement which results or is intended to
    result in the sale, exchange, purchase, renting or leasing
    of any real estate or in a loan secured or to be secured by
    mortgage or other encumbrance upon real estate. No
    [salesperson] shall be affiliated with more than one broker
    at the same time nor shall any [salesperson] be entitled to
                                                                 13


     any fee, commission or other valuable consideration or
     solicit or accept the same from any person except his [or
     her]licensed broker in connection with any such agreement
     or transaction. A [salesperson] may be affiliated with a
     broker either as an employee or as an independent
     contractor and may, by agreement, be paid as an outside
     salesperson on a commission-only basis, but shall be under
     such supervision of said broker as to ensure compliance
     with this section and said broker shall be responsible with
     the [salesperson] for any violation of [G. L. c. 112,
     § 87AAA,] committed by said [salesperson]."

Section 87AAA enumerates numerous grounds for the suspension,

revocation, or refusal to renew the license of a broker or

salesperson.   These grounds include a range of conduct, the

prohibition of which is intended to promote fairness and

integrity in real estate transactions.17   Id.   See 254 Code Mass.


     17
       The proscribed conduct is set forth in G. L. c. 112,
§ 87AAA, as follows: "(a) knowingly made any substantial
misrepresentation; (b) acted in the dual capacity of broker and
undisclosed principal in the same transaction; (c) acted for
more than one party to a transaction without the knowledge and
consent of all the parties for whom he [or she] acts; (d)
failed, within a reasonable time, to account for or remit any
moneys belonging to others which have come into his [or her]
possession as a broker or [salesperson]; (e) paid commissions or
fees to or divided the same with any person, who, being required
to be licensed as a broker or [salesperson] in this or any other
[S]tate, is not so licensed; (f) accepted, given or charged any
undisclosed commission, rebate or profit on expenditures for a
principal; (g) induced any party to a contract or lease relating
to real estate to break the same when such action is effected
for the personal gain of the licensee; (h) commingled the money
or other property of his [or her] principal with his [or her]
own; (i) failed to give to both the buyer and seller a copy of
the purchase and sale agreement; (j) committed any act expressly
prohibited in [§§ 87RR to 87CCC]; (k) affirmatively solicited
for sale, lease, or the listing for sale or lease, of
residential property on the grounds of alleged change of value
due to the presence or the prospective entry into the
neighborhood of a person or persons of another race, economic
                                                                   14


Regs. § 3.00 (2005) (setting forth professional standards of

practice as well as additional grounds for discipline).

    4.    Discussion.   In this appeal, we address the conflict

between the independent contractor statute and the real estate

licensing statute which, respectively, support the plaintiffs'

claim that they are "employees" and the defendants' claim that

the plaintiffs are or can be "independent contractors."   The

plaintiffs rely on the independent contractor statute insofar as

it creates a presumptive employee status that, in its

application, includes real estate salespersons.   The defendants

rely on the real estate licensing statute providing that a

"[salesperson] may be affiliated with a broker either as an

employee or as an independent contractor."    See G. L. c. 112,

§ 87RR.

    "The general and familiar rule is that a statute must be

interpreted according to the intent of the Legislature

ascertained from all its 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


level, religion or ethnic origin or distributes, or causes to be
distributed, material or makes statements designated to induce a
residential property owner to sell or lease his [or her]
property due to such change in the neighborhood; or (l) accepted
from a prospective seller a net listing, an agreement to sell
real estate for a stated price which authorized the broker to
keep as commission any amount of money received from the sale of
said real estate in excess of the stated price."
                                                                    15


remedied and the main object to be accomplished."     Lowery v.

Klemm, 446 Mass. 572, 576-577 (2006), quoting Hanlon v. Rollins,

286 Mass. 444, 447 (1934).    Clear and unambiguous language in a

statute is conclusive as to legislative intent.     Commissioner of

Correction v. Superior Court Dep't of the Trial Court for the

County of Worcester, 446 Mass. 123, 124 (2006).     In addition, "a

remedial statute . . . should be given a broad interpretation

. . . in light of its purpose . . . to 'promote the

accomplishment of its beneficent design.'"    Seller's Case, 452

Mass. 804, 810 (2008), quoting Neff v. Commissioner of the Dep't

of Indus. Accs., 421 Mass. 70, 73 (1995).    In cases "[w]here two

or more statutes relate to the same subject matter, they should

be construed together so as to constitute a harmonious whole

consistent with the legislative purpose."    Federal Nat'l Mtge.

Ass'n v. Hendricks, 463 Mass. 635, 641 (2012), quoting Board of

Educ. v. Assessor of Worcester, 368 Mass. 511, 513-514 (1975).

    As an initial matter, there is no question that the

independent contractor statute is a remedial statute.     See

Depianti, 465 Mass. at 621.   It thus should be given a

construction that furthers, not defeats, its purpose.     See id.

The difficulty in seeking to construe it in harmony with the

real estate licensing statute, however, is that the real estate

licensing statute makes it impossible for a real estate

salesperson to satisfy the three factors required to achieve
                                                                    16


independent contractor status, all of which must be satisfied to

defeat the presumption of employee status.    For instance, under

the second factor of the independent contractor statute, the

employer must prove that "the service [of the worker] is

performed outside the usual course of the business of the

employer."    G. L. c. 149, § 148B (a) (2).   Because under G. L.

c. 112, § 87RR, "[n]o [salesperson] may conduct or operate his

[or her] own real estate business nor act except as the

representative of a real estate broker," an employer can never

prove that the service is performed outside the usual course of

the employer's business.   Under the express language of § 87RR,

a salesperson is prohibited from performing any services other

than as the broker's representative and as part of the broker's

business.    Under the third factor of the independent contractor

statute, the employer must prove that the worker "is customarily

engaged in an independently established" business in the real

estate industry.   See G. L. c. 149, § 148B (a) (3).    General

Laws c. 112, § 87RR, however, prohibits a real estate

salesperson from operating his or her own real estate business.

Thus, compliance with this third factor also is not possible.

    The exclusion of real estate salespersons from independent

contractor status clearly was not intended by the Legislature.

While § 87RR expressly authorizes a real estate salesperson to

affiliate with a broker as an employee, it also expressly
                                                                    17


authorizes an association as an independent contractor.     See id.

("A [salesperson] may be affiliated with a broker either as an

employee or as an independent contractor . . ." [emphasis

added]).   We cannot view this express language as superfluous.

See Casa Loma, Inc. v. Alcoholic Beverages Control Comm'n, 377

Mass. 231, 234 (1979) ("It is a common tenet of statutory

construction, that, wherever possible, no provision of a

legislative enactment should be treated as superfluous").

    Unlike the judge, we do not view the 2010 amendment to

§ 87RR to be instructive in resolving the conflict.    The 2010

amendment to § 87RR added language authorizing brokers and

salespersons to enter into agreements whereby a real estate

salesperson could be paid on a commission-only basis.    See St.

2010, c. 307, § 1 (as applying to salespersons, adding in second

paragraph, in third sentence, "and may, by agreement, be paid as

an outside salesperson on a commission-only basis").    The judge

concluded that, by virtue of this amendment and, in contrast, of

the independent contractor statute being left intact, the

Legislature intended that real estate salespersons qualify as

independent contractors despite the inherent level of control

brokers must exercise over them.   Although this interpretation

is reasonable, it is not dispositive of the issue before us

because when enacting St. 2010, c. 307, § 1, the Legislature

could have deleted the reference in § 87RR that permits a real
                                                                    18


estate salesperson to be affiliated with a broker either as an

employee or an independent contractor.   The Legislature took no

action regarding the nature of this affiliation.   Thus, the

amendment does not reflect an affirmation that a real estate

salesperson is an independent contractor.   It reflects an

affirmation that the salesperson may be an independent

contractor, but he or she also may be an employee.18    Where the

Legislature left the reference in place regarding the nature of

the affiliation, we conclude that the 2010 amendment simply was

intended to address how a real estate salesperson, whether an

employee or an independent contractor, could be paid,

authorizing payment in the form of commissions only.19    The

amendment cannot be said to speak to the nature of the

affiliation between the broker and salesperson other than

confirming the fact that the affiliation may be either as an

employee or as an independent contractor.

     The judge's reliance on the familiar canon of construction

providing that a specific statute, in this case § 87RR, controls


     18
       The defendants concede this point: "It is true that the
November 2010 amendment confirms the lawfulness of engaging
licensed salespersons as employees, just as it is true that the
amendment confirms the lawfulness of engaging them as
independent contractors."
     19
       The fact that a real estate salesperson may be paid in
the form of commissions only and that commissions may be subject
to the Wage Act does not negate the applicability of the
independent contractor statute. See note 15, supra.
                                                                   19


over the provisions of a general statute, such as the

independent contract statute, however, is appropriate here.    See

TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 18

(2000); Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 215 (1997).

As outlined earlier, real estate brokers are responsible for

their affiliated salespersons' compliance with a broad range of

statutory provisions and regulations.   No doubt this supervision

and control has been required due in part to the difference in

training and testing that is required of real estate brokers in

comparison to salespersons.   It also necessarily is in place to

protect the public, namely the consumers who are selling,

purchasing, leasing, or renting real estate in a highly

regulated field.   Despite that level of supervision and control

mandated by law, § 87RR nevertheless expressly preserves a

salesperson's ability to be affiliated with a broker as either

an employee or an independent contractor.   Thus, it is § 87RR

that controls in this instance, not the more general independent

contractor statute.   Were we to conclude otherwise, we would be

subjecting real estate brokerage firms to potential criminal

penalties for misclassifying its real estate salespersons in a

manner expressly authorized by the real estate licensing

statute.   See G. L. c. 149, § 148B (d) (failure to properly

classify individual as employee and to comply with other
                                                                   20


provisions of Wage Act or Fair Minimum Wage Law subjects

employer to criminal penalties).

    That being said, we underscore the limited nature of our

holding.   The plaintiffs' complaint alleged four counts:    the

first for misclassification under the independent contractor

statute, G. L. c. 149, § 148B; the second for failing to make

timely payment of wages and taking improper deductions, under

G. L. c. 149, § 148; the third for failure to pay the State

statutory minimum wage for all hours worked, in violation of

G. L. c. 151, §§ 1 et seq.; the fourth for failure to pay time

and one-half for hours worked in excess of forty hours per week,

in violation of G. L. c. 151, § 1A.    See note 10, supra.   The

judge granted summary judgment to the defendants only on the

first count.   Following the judge's decision, the plaintiffs

dismissed the remaining counts without prejudice in order to

pursue this appeal.

    Because we agree with the Superior Court judge that the

independent contractor statute does not apply to real estate

salespersons, we conclude that the judge properly granted

summary judgment on the first count:   the plaintiffs cannot

prevail on a claim based on a statute that does not apply to

them.   In reaching that conclusion, however, we take no position

on whether the plaintiffs in fact are employees or independent

contractors, or on how, in the absence of the framework
                                                                    21


established by the independent contractor statute, it may be

determined whether a real estate salesperson is properly

classified as an independent contractor or employee.   Earlier

proposed legislation specifically provided that "a [salesperson]

or broker may be affiliated with a broker either as an employee

or as an independent contractor, as determined by their written

agreement and customary work practices."   St. 2008, c. 304, § 8.

The Governor, however, disapproved this language, concluding

that it "would allow real estate sales persons and brokers to

rely on written agreements to avoid the classification rules for

independent contractors."   See 2008 House Doc. No. 5075.     The

statute ultimately enacted expressly stated that a commission-

only compensation structure may be established "by agreement."

G. L c. 112, § 87RR.   It does not, however, indicate how a

broker and real estate salesperson may create an independent

contractor relationship, rather than an employment relationship.

    Because the plaintiffs based their argument on appeal on

the contention that they are employees under the framework set

forth in the independent contractor statute, they did not

address how the court should determine the nature of their

relationship if the court determines, as we have, that the

framework does not apply.   In light of the potential impact of

that issue on the real estate industry as a whole and its

significant ramifications for real estate salespersons' access
                                                                    22


to the rights and benefits of employment, we think it prudent to

leave that issue's resolution to another day, when it has been

fully briefed and argued.    Should the Legislature be so

inclined, it may wish to clarify how a real estate salesperson

may gain employee status under the real estate licensing

statute.

    5.     Conclusion.   For the foregoing reasons, we affirm the

judge's order denying the plaintiffs' motion for partial summary

judgment and granting partial summary judgment to the

defendants.

                                      So ordered.
