Independent Contractor Label Notwithstanding, MCAD Holds Small Business Liable For Employment Discrimination

Earlier this year, the Massachusetts Commission Against Discrimination (MCAD) confirmed that small businesses may be subject to the anti-discrimination provision of Chapter 151B, even if the business claims to only hire independent contractors because it is the nature of the employment relationship that determines the MCAD’s jurisdiction and not the label chosen by the business. The commission confirmed that the anti-discrimination law applies to all businesses in Massachusetts with six or more employees even if the business happens to call them independent contractors.

In MCAD and Pavlov v. Happy Floors, Inc., a female worker alleged that her employer discriminated against her on the basis of sex and pregnancy in violation of Mass. Gen. Laws c. 151B, § 4(1). The flooring company maintained that it was not subject to MCAD’s jurisdiction because its workers were independent contractors, not employees. The Hearing Commissioner took evidence at a public hearing and determined, basedon an in-depth analysis of the nature of employment relationship, that the workers were in fact employees and not independent contractors.

In making that determination, the Hearing Commissioner focused on “the extent to which the employer has the right to exercise control over the employee’s work, not only to specify the final result, but also to supervise and direct the details and the means by which the result is achieved.” The Commissioner also considered (a) whether the work is of a type done under supervision or by a specialist working independently; (b) the skill required; (c) whether the employer furnishes the equipment and workplace, and bears the costs of operation; (d) whether payment is wages or salary for the time worked rather than profit or a set contractual fee on production of a final product or service; and (e) whether the parties have an ongoing relationship which may be terminated without notice or explanation by either party.

On appeal, the full commission also considered the independent contractor statute, Mass. Gen. Laws ch. 149, § 148B, which states that a worker is an employee unless all the following factors are met: (1) the worker is free from control and direction in connection with performing services; (2) the worker’s services are performed outside of the usual course of business of the recipient of the services; and (3) 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. Under the second prong of this test, for example, a drywall installer working for a drywall company performing drywall installations cannot be properly classified as an independent contractor.

Construing the law liberally, the Hearing Commissioner found that Happy Floors employed flooring installers to do flooring installations, the company had a right to control the workers’ individual performance, the company provided tools and materials to the workers if they did not have their own tools, and the company required workers to wear company-branded tee shirts while on the job. On appeal, the full commission recognized that the Hearing Commissioner weighed the credibility of the testifying witnesses and conducted an in-depth analysis of the evidence, and thus affirmed the findings in their entirety.

This opinion from the MCAD is particularly instructive for small businesses in Massachusetts that employ six or fewer workers because they may be subject to employment-related claims before the MCAD despite only hiring (what they consider are) independent contractors.

Spring 2025 Newsletter

To Infinity and Beyond: When a Business Contract is Incomplete

Parties who decide to do business with each other must be very careful to ensure that the agreement between them contains all the important terms, especially the duration of the contract over which the parties expect to be in business with each other. A recent case from the Massachusetts Appeals Court confirms that in situations where a contract does not have an express duration term, the parties’ intent and circumstances dictate the reasonable duration of the contract, and one party cannot terminate the contract at-will.

Fall 2024 Newsletter

Four Laredo, Smith & Kane Attorneys Recognized by Boston Magazine as 2024 “Top Lawyers”

Laredo, Smith & Kane announces that four of its attorneys were selected by Boston Magazine for inclusion in the 2024 Top Lawyers list. The exclusive list honors the best attorneys in the region, from corporate to family law.

The four Laredo, Smith & Kane attorneys named to the list include:

●     Marc C. Laredo: Business Law

●     Payal Salsburg: Commercial Litigation

●     Jessica L. Conklin: Criminal Defense/White Collar

●     Darshana Indira: Labor and Employment

Boston Magazine’s annual Top Lawyers list is compiled through peer nominations. Attorneys are invited to nominate up to three of their peers in a select number of law specialties. Top vote-getters in each specialty are reviewed by an advisory board of select lawyers, chosen for their credentials and the high number of votes they received.

About Laredo, Smith & Kane, LLP
For nearly 30 years, Laredo, Smith & Kane has helped clients grow their businesses and resolve legal matters–offering clients big-firm expertise with the client-centered strategy that only a small firm can provide.  The firm’s attorneys successfully combine a strategic approach to running a business with thoughtful, thorough, and protective legal representation. The firm represents clients in matters related to business law and litigation, white collar criminal defense, government investigations, employment law, and school disciplinary and Title IX matters.

Laredo, Smith & Kane Earns Top Metropolitan and National Rankings in “Best Law Firms” 2025

Laredo, Smith & Kane received both high metropolitan and national rankings in the Best Lawyers® “Best Law Firms” 2025 edition. Law firms included on the “Best Law Firms” list are recognized for professional excellence and consistently strong ratings from clients and peers. Below are the firm’s complete rankings.

Metropolitan Tier 1 (Boston)

  • Closely Held Companies and Family Businesses
  • Commercial Litigation
  • Criminal Defense: White-Collar

Metropolitan Tier 2 (Boston)

  • Employment Law – Management

National Tier 3

  • Commercial Litigation

The Best Lawyers “Best Law Firms” rankings are determined by an exhaustive evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking in a particular practice area and metro region, a law firm must have at least one lawyer included in Best Lawyers in that particular practice area and metro.

About Laredo, Smith & Kane, LLP

For nearly 30 years, Laredo, Smith & Kane has helped clients grow their businesses and resolve legal matters–offering clients big-firm expertise with the client-centered strategy that only a small firm can provide.  The firm’s attorneys successfully combine a strategic approach to running a business with thoughtful, thorough, and protective legal representation. The firm represents clients in matters related to business law and litigation, white collar criminal defense, government investigations, employment law, and school disciplinary and Title IX matters.

Seven Laredo, Smith & Kane Attorneys Recognized in the 2024 Edition of Massachusetts Super Lawyers

Laredo, Smith & Kane announces that seven of its attorneys have been recognized in the 2024 edition of Massachusetts Super Lawyers , with five included on the Super Lawyers list and two on the Rising Stars list.

The Laredo, Smith & Kane attorneys on the Massachusetts Super Lawyers list and their corresponding category/practice area are:

In addition, Super Lawyers named Kane, Laredo, and Salsburg to the Top 100 list, recognizing the top 100 attorneys in Massachusetts. Further, Salsburg was included on the Top 50 women list, recognizing Massachusetts’s top 50 women attorneys.

The Laredo, Kane & Smith attorneys on the Massachusetts Rising Starts list and their corresponding category/practice area are:

Super Lawyers is a research-driven, peer-influenced rating service of lawyers who have attained a high degree of peer recognition and professional achievement. The mission of Super Lawyers is to bring visibility to those attorneys who exhibit excellence in practice.

 

About Laredo, Smith & Kane, LLP

For nearly 30 years, Laredo, Smith & Kane has helped clients grow their businesses and resolve legal matters–offering clients big-firm expertise with the client-centered strategy that only a small firm can provide.  The firm’s attorneys successfully combine a strategic approach to running a business with thoughtful, thorough, and protective legal representation. The firm represents clients in matters related to business law and litigation, white collar criminal defense, government investigations, employment law, and school disciplinary and Title IX matters.

 

Darshana Indira Quoted in Mass Lawyers Weekly Article Covering SJC Ruling

Darshana Indira was quoted in a recent Massachusetts Lawyers Weekly article entitled, “Bar Sees Balance in SJC’s Ruling in 7-Eleven Case” where she commented on how the case compares the franchisor-franchisee relationship to that of an employer-employee one.

An employment lawyer, Darshana told Mass Lawyers weekly:  “Boston employment and business lawyer Darshana Indira said she had been surprised to learn that the Patel case was heading back to the SJC, calling it a “stretch” on the facts of the case to construe the franchisor-franchisee relationship as an employer-employee relationship. Other models live more clearly in the “gray area.” Every time the SJC speaks on an issue like this, the court helpfully resolves lingering ambiguity around the independent contractor statute, she added. “It definitely informs our decisions on how we draft contracts, how we are going to treat employees, [and] how we treat our consultants,” Indira said.

Six Laredo, Smith & Kane Attorneys Recognized in The Best Lawyers in America® 2025

Boston law firm Laredo, Smith & Kane announces that six of its attorneys were selected for inclusion in The Best Lawyers in America® 2025 edition. Published by Woodward/White, Inc. since 1982, Best Lawyers is considered by many to be the oldest and most respected peer-reviewed publication in the legal profession.

The six Laredo, Smith & Kane attorneys listed in Best Lawyers are:

●      Marc C. Laredo: Commercial Litigation; Employment Law, Management

●      Mark D. Smith: Closely Held Companies and Family; Business Law; Commercial Litigation; Criminal Defense, White-CollarLared

●      Matthew A. Kane: Litigation, Labor & Employment

●      Payal Salsburg: Commercial Litigation; Criminal Defense, White-Collar

●      William G. Cosmas, Jr.: Commercial Litigation

●      Jessica L. Conklin: Criminal Defense, White-Collar

Inclusion in The Best Lawyers in America is based on an extensive peer-review process designed to capture the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical and legal practice area. Best Lawyers highlights the top 5% of practicing attorneys in each practice area. Its 2025 selections are featured in the 31st edition of The Best Lawyers in America.

About Laredo, Smith & Kane, LLP
For nearly 30 years, Laredo, Smith & Kane has helped clients grow their businesses and resolve legal matters–offering clients big-firm expertise with the client-centered strategy that only a small firm can provide.  The firm’s attorneys successfully combine a strategic approach to running a business with thoughtful, thorough, and protective legal representation. The firm represents clients in matters related to business law and litigation, white collar criminal defense, government investigations, employment law, and school disciplinary and Title IX matters.

Navigating Joint Employer Liability in Massachusetts

The Massachusetts Appeals Court recently affirmed that a management company providing comprehensive services to a car dealership qualifies as a “joint employer,” subject to potential liability for Wage Act violations. This ruling in Tran v. Jennings Road Management Corp., et al. sets a significant precedent for how joint employer status is determined under Massachusetts law.

Summer 2024 Newsletter

Payal Salsburg quoted in Bloomberg Law Article on Massachusetts Simplified Anti-SLAPP Protocol for Retaliatory Suits

Bloomberg Law turned to our partner Payal Salsburg as a resource regarding the Massachusetts Supreme Judicial Court’s latest overhaul of the process for defeating a retaliatory lawsuit.

The justices revised a process for dismissing cases under the state’s anti-SLAPP law, a law meant to create a quick pathway for courts to throw out meritless lawsuits.

Payal comments on the new framework as “a welcome return to the legislature’s original intent with the law.” She continues, “it was only supposed to be for those very rare, narrow cases where there was no doubt whatsoever that the lawsuit has been brought because you exercised your petitioning activity and solely because of that.”

To read the entire article: Lawyers Hail New Massachusetts Retaliatory Suit Protocol

Laredo & Smith Attorneys Recognized as 2023 “Top Lawyers” by Boston Magazine

Laredo & Smith announces that three of the firm’s attorneys are recognized as 2023 “Top Lawyers” by Boston Magazine. The publication honors 979 of the region’s Top Lawyers in their December 2023 issue. Included from the firm are:

This is the third year that Boston Magazine recognizes the region’s most respected attorneys. To compile the list of top lawyers, Boston Magazine invited attorneys in the area to nominate up to three of their peers in a select number of specialties. The top vote-getters in each specialty were then reviewed by an advisory board of select lawyers, chosen for their credentials and the high number of votes they received.