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performing any services is considered to be an
"employee" for purposes of Massachusetts labor and
Wage and Hour laws unless the employer can prove all
three of the following:
the individual is free from control and direction of
the business he or she is providing services for;
the service is performed outside the usual course of
the business of the employer; AND
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.
It is important to understand that all three of these
tests must be met. It is the second prong that has proven
most troublesome for employers. Even if a person
functions independently, and “freelances” for other
55| Rules of the Road
