All employees in Massachusetts must be covered under a workers’ compensation policy. Find out who is and is not considered an employee.
What is the definition of an employee?
The Massachusetts workers’ compensation law, MGL c. 152, § 1(4), states that an employee is “every person in the service of another under any contract of hire, express or implied, oral or written.”
Exceptions include but are not limited to:
- Seaman engaged in interstate/foreign commerce
- Salesmen of real estate or consumer goods who work on a commission, or buy/sell basis other than in a retail establishment, with a written contract stating they are not treated as an employee under federal tax law
- Taxi drivers who lease their cabs on a fee basis not related to fares collected and who are not treated as an employee under federal tax law
- Persons engaged in interstate/foreign commerce who are covered by federal law for compensation for injury or death
There is no simple rule of thumb to determine who is an independent contractor for purposes of workers’ compensation claims and disputes. Determination of independent contractor status is always a question of fact. Inquiries about independent contractors should go to your own attorney or to the Office of Legal Counsel at (617) 727-4900, ext. 7423 to speak with a staff attorney.
In Massachusetts under MGL c. 149, § 148B, workers are presumed to be employees. An employer who wants to treat someone as an independent contractor has to show that work:
- Is done without the employer’s direction and control
- Is performed outside the usual course of the employers business
- Is done by someone who has their own, independent business or trade doing that kind of work
The Attorney General’s office has issued an advisory on independent contractors that:
- Explains the purpose of the law
- Discusses the 3-part test for independent contractor classification
- Includes enforcement guidelines
- Describes the areas of concern and factors that the Attorney General’s office may use to determine enforcement
For more information, please contact our Office of Legal Counsel at (617) 727-4900, ext. 7423 to speak with a staff attorney.
There is no simple rule of thumb in deciding who is a subcontractor. Questions about subcontractors should go to the Office of Legal Counsel at (617) 727-4900, ext. 7423 to speak with a staff attorney. Generally the deciding factor is whether the employer has control over the manner and methods of the work.
Subcontractors may have money deducted for workers’ compensation coverage by the general contractor but only if it is provided for in their contract, or otherwise it is explicitly provided. General contractors have legitimate concerns about whether subcontractors have workers’ compensation insurance as they can be held liable for claims against them by a subcontractor or their employees. Therefore, subcontractors may find the general contractor requires them to provide proof of workers’ compensation coverage, or that the subcontractor agrees to come under the general contractor’s workers’ compensation policy with the costs passed on to them.
Homeowners can be held liable if a contractor working in their home gets injured. Contact our Office of Legal Counsel at (617) 727-4900, ext. 7423 to speak with a staff attorney to find out under which circumstances this may happen.
Small and/or family businesses
All employers are required to carry workers’ compensation for their employees, including themselves if they are an employee of their company. This requirement applies regardless of the number of hours worked, except domestic service employees who must a work a minimum of 16 hours per week to require coverage.
Family members must be covered by workers’ compensation even if they are the only employees of the business.