Board of Review Decision 352-MNPJ-R7R7

Employer failed to show that the claimant’s work in the development and manufacture of specialized electronic fibers was not employment under G.L. c. 151 § 2(b). Even if the work was a new endeavor, the record showed that her work had become part of the employer’s usual course of business. Where the claimant spent most of her time working on site at the employer’s location, services were also not performed outside of all places of the employing unit’s enterprise.

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Issue ID: 352-MNPJ-R7R7

Board of Review Decision

Introduction and Procedural History of this Appeal 

The claimant appeals a decision by a review examiner of the Department of Unemployment Assistance (DUA) to deny unemployment benefits. We review, pursuant to our authority under G.L. c. 151A, § 41, and reverse. 

The claimant’s services for the employer ended on March 7, 2025. She filed a claim for unemployment benefits with the DUA, with an effective date of March 9, 2025, which was denied in a determination issued on July 24, 2025. The claimant appealed the determination to the DUA hearings department. Following two hearing sessions on the merits attended by both parties, the review examiner affirmed the agency’s initial determination and denied benefits in a decision rendered on February 27, 2026. We accepted the claimant’s application for review.

Benefits were denied after the review examiner determined that the claimant’s services for the employer did not constitute employment within the meaning of G.L. c. 151A, § 2, and, therefore, she did not have sufficient qualifying base period wages to be monetarily eligible for benefits pursuant to G.L. c. 151A, § 24(a). Our decision is based upon our review of the entire record, including the recorded testimony and evidence from the hearing, the review examiner’s decision, and the claimant’s appeal. 

The issue before the Board is whether the review examiner’s decision, which concluded that the claimant’s work developing and manufacturing fabric microphones for the employer did not constitute employment with the meaning of G.L. c. 151A, § 2, is supported by substantial and credible evidence and is free from error of law.

Findings of Fact

The review examiner’s findings of fact are set forth below in their entirety:

1. The alleged employer (the employer) is engaged in the business of developing technology in preventions of cold weather injury, and protection for individuals in cold [sic] that included health monitoring. 
2. The claimant provided services for the employer from 1/9/2024 until 3/7/2025. 
3. The employer works on projects for the Department of Defense with technology developed at [Institute A]. 
4. The claimant was a PhD student of the employer’s founder (Founder).
5. The claimant was an expert in developing fabric microphones and listening devices for the intelligence community. 
6. The employer does not work with or develop fabric microphones and listening devices for the intelligence community in the normal course of business. 
7. The Founder became aware of a project directed by [Institute B] that aligned with the claimant’s subject matter expertise and offered to bring her in as a consultant if they took the project. 
8. On 1/5/2024, the claimant agreed to work as a consultant on the project. 
9. The claimant created her own schedule. 
10. The claimant was not required to notify the employer if she needed time off, she did so as a courtesy. 
11. The employer did not direct the claimant’s work. 
12. Any project deadlines were directed by the Institute. 
13. The claimant directed and trained employees on the subject matter, including how to assess and improve the quality of the microphones. 
14. The individual utilized a smartphone application which the employer used for payroll purposes. 
15. The employer did not restrict the claimant from working on other projects. 
16. The claimant worked on one project through [Institute A] while she consulted on the project.
17. The claimant provided the employer with a record of billable hours and the employer paid her $50.00 per hour. 

Ruling of the Board

In accordance with our statutory obligation, we review the record and the decision made by the review examiner to determine: (1) whether the findings are supported by substantial and credible evidence; and (2) whether the review examiner’s conclusion is free from error of law. Upon such review, the Board adopts the review examiner’s findings of fact and deems them to be supported by substantial and credible evidence except as follows. We accept Finding of Fact 6 only insofar as it reflects the employer’s business prior to hiring the claimant. However, as discussed more fully below, we disagree with the review examiner’s legal conclusion that the employer has met its burden under all three prongs of G.L. c. 151A, § 2. 

Employment is defined in G.L. c. 151A, § 2, which states, in relevant part, as follows:

Service performed by an individual . . . shall be deemed to be employment subject to this chapter . . . unless and until it is shown to the satisfaction of the commissioner that—

(a) such individual has been and will continue to be free from control and direction in connection with the performance of such services, both under his contract for the performance of service and in fact; and 

(b) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and

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

The failure to withhold federal or state income taxes or to pay workers compensation premiums with respect to an individual’s wages shall not be used for the purposes of making a determination under this section. An individual’s exercise of the option to purchase insurance as permitted by subsection (4) of section 1 of chapter 152 shall not be used for purposes of making a determination under this section. . . .

Under this statutory provision, the burden of proof is on the employer and the test is conjunctive. Thus, the employer must meet all three prongs of this “ABC” test. Should it fail to meet any one of the prongs, the relationship will be deemed to be employment. Coverall North America, Inc. v. Comm’r of Division of Unemployment Assistance, 447 Mass. 852, 857 (2006).

Prong (a)

We analyze prong (a) under common law principles of master-servant relationship, including whether the worker is free from supervision “not only as to the result to be accomplished but also as to the means and methods that are to be utilized in the performance of the work.” Athol Daily News v. Board of Review of Division of Employment and Training, 439 Mass. 171, 177 (2003), quoting Maniscalco v. Dir. of Division of Employment Security, 327 Mass. 211, 212 (1951). “The essence of the distinction under common law has always been the right to control the details of the performance,” but “the test is not so narrow as to require that a worker be entirely free from direction and control from outside forces.” Athol Daily News, 439 Mass. at 177–178.

In the present case, the claimant was hired to provide services in the development and manufacture of listening devices in fabric-based technology. See Finding of Fact 5. It was undisputed that the parties did not have a written employment contract. Thus, to analyze prong (a), we consider only whether the claimant was free of direction and control in fact. 

The findings are mixed. Importantly, the review examiner found that the employer did not direct the claimant’s work. See Finding of Fact 11. Also, the claimant was free to write her own schedule, she was not required to notify the employer when she wanted to take time off, and her deadlines were dictated by the funding institute, not by the employer. See Finding of Facts 9, 10, and 12. 

The review examiner concluded that the claimant was free from the employer’s control. Given the facts, we agree. The review examiner’s view of the evidence is not unreasonable. From the record, the claimant had almost full control over the factors which would dictate the means and methods of her performance, including how, when, and where she performed much of her work. See Finding of Facts 9, 10, 11, and 12. For this reason, we cannot say that the review examiner reached the wrong conclusion under prong (a).

Prong (b)

Under prong (b), the employer may satisfy its burden by proving either that the services performed are outside the usual course of the employer’s business, or that they are performed outside of all places of the employer’s enterprise. See Athol Daily News, 439 Mass. at 179. The employer has not met its burden under this prong. 

Prior to retaining the claimant’s services, the usual course of the employer’s business was to develop technology that better prevents cold weather injury. See Finding of Fact 1. Before hiring the claimant, the employer became aware of a project which would engage their research with the use of fabric microphones and listening devices, which is the claimant’s area of expertise. See Findings of Fact 5, 6, and 7. After accepting the project, the claimant agreed to work as a consultant for the employer. See Findings of Fact 2, 7, and 8. 

Although the use of fabric microphones in its cold weather gear was a new area of research and design for the employer, the record indicates that, in the course of the claimant’s tenure with the employer, this changed and the claimant’s services were incorporated into the employer’s usual course of business. 

In a prior Board of Review case, an employer that focused on producing website text hired a consultant to produce videos. Because many of the employees in its regular workforce became deeply involved in the project, the Board held that these services had become part of the employer’s usual course of business. See Board of Review Decision 0019 6946 15 (Sept. 25, 2017). 

The record here shows that a large part of the claimant’s services was to supervise and train employees in this new area of expertise. See Finding of Fact 13. The employer’s own witness testified that the reason they hired the claimant for this project was “basically to help transfer this knowledge [to the employer’s employees] and perform these tasks because she was the one who was subject matter expert.” During the claimant’s time as a consultant, both parties testified that she also worked on improving the overall manufacturing processes of specialized fibers, working directly with the head of manufacturing. Thus, it was undisputed that the claimant had the active participation of the employer’s workforce, who often worked side-by-side, or under the direction and supervision of the claimant. Considering that the employer is now utilizing the manufacturing systems that the claimant developed for its manufacture of specialized electronic fibers to prevent cold weather injury, and the employer used the claimant to train the employees in her area of expertise, we believe that the record shows that the employer had expanded its usual course of business to include the claimant’s work. 

The employer has also failed to demonstrate that the claimant performed her services outside of all the places of the employing unit’s enterprise. Although the claimant had the option to work from home at will, it was clear that the claimant spent much of her time in the employer’s lab. The claimant testified that she spent most Mondays through Fridays working on location, occasional weekends, and every Friday had a regularly scheduled meeting which she attended on site. It was further undisputed that, because her services were developing and manufacturing, the very nature of the work required her to be at the employer’s location to use their equipment and tools. In sum, the claimant performed work at the employer’s location throughout most of her employment. 

Prong (c)

As to prong (c), the test “asks whether the worker is ‘customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.’” Athol Daily News, supra, at 179. To determine whether the employer has carried its burden under prong (c), we “consider whether the services in question could be viewed as an independent trade or business because the worker is capable of performing the services [for] anyone wishing to avail themselves of the services or, conversely, whether the nature of the business compels the worker to depend on a single employer for the continuation of the services.” Coverall, 447 Mass. at 858. The pertinent inquiry under prong (c) is not whether the workers in fact operated their own business, but whether they were free to do so. Tiger Home Inspection, Inc. v. Dir. of Department of Unemployment Assistance, 101 Mass. App. Ct. 381 (2022).

Generally, when a claimant works full time for the employer, we have held that prong (c) is not met because the full-time nature of the work renders a claimant unable to perform additional work. See, e.g., Board of Review Decision 0008 9539 14 (Oct. 28, 2016) (unreasonable to believe that devoting over 55 hours per week delivering packages for the employer’s clients left the claimant time to build up his own business). That does not appear to be the case here. 

The parties’ original agreement was that the claimant’s hours would be capped at 35 per week, but she could work fewer hours to provide her with the opportunity to seek additional or alternative employment. See Exhibit 2. In fact, it was undisputed that the claimant frequently worked over forty hours a week for the employer. This was by choice, not because the employer required it, and she did take on additional work in her field during her time with the employer. See Finding of Fact 16. Thus, the record shows that the claimant in this case was capable of performing services to anyone who wished to avail themselves of her services. 

We, therefore, conclude as a matter of law that because the employer has failed to prove prong (b) under G.L. c. 151A, § 2, the claimant’s services constituted employment. We further conclude that, based upon this employment, the claimant was paid sufficient wages in the base period to be eligible for benefits pursuant to G.L. c. 151A, § 24(a).

The review examiner’s decision is reversed. The employer is required to report wages for the claimant, and the claimant is entitled to receive benefits based upon those wages for the week beginning March 9, 2025, and for subsequent weeks if otherwise eligible.

Boston, Massachusetts                                              Date of Decision – May 26, 2026

1. While not explicitly incorporated into the review examiner’s findings, the testimony in this regard, as well as the portions of Exhibit 2 and testimony referenced below, are part of the unchallenged evidence introduced at the hearing and placed in the record. As such, they are properly referred to in our decision today. See Bleich v. Maimonides School, 447 Mass. 38, 40 (2006); Allen of Michigan, Inc. v. Deputy Dir. of Department of Employment and Training, 64 Mass. App. Ct. 370, 371 (2005). 
2. In her decision, the review examiner states that the employer “did not provide any tools, equipment, supplies, or locations.” However, as discussed below, it was undisputed that the claimant worked in the employer’s lab using the employer’s tools and equipment. 
3. The claimant testified that, according to her time records, over 90% of her hours were spent in the lab or in the office provided by the employer. The employer did not dispute this statistic, instead claiming they could neither confirm nor deny this detail. 
4. Exhibit 2 includes a document titled “Executive Summary,” provided the employer, which outlines its alleged understanding of the employment agreement. The employer asserted that on January 9, 2025, the parties came to an agreement that the claimant’s work “would be capped at 70 hours per biweekly pay period, in which she can work as little as possible, giving her time to get a full-time job elsewhere.” 

Charlene A Stawicki, Esquire
Member

Michael J. Albano
Member

Any further appeal would further appeal further appeal would be to a Massachusetts State District Court
(See Section 42, Chapter 151A, General Laws, Enclosed)

The last day to appeal this decision to a Massachusetts District Court is thirty days from the mail date on the first page of this decision. If that thirtieth day falls on a Saturday, Sunday, or legal holiday, the last day to appeal this decision is the business day next following the thirtieth day.

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