First, there is a presumption that any individual receiving payment for services is an employee UNLESS the employer establishes otherwise. Thus it is the employer’s burden to argue that the individual is an independent contractor rather than an employee.
This is done in a three-part test:
1. Is the individual is free from control and direction of the employer in connection with the performance of the service?
a. Yes: see question 2.
b. No: this individual is an employee.
2. Is service that is provided by the individual is outside of the usual course of the business of the employer?
a. Yes: see question 3.
b. No: this individual is an employee.
3. Is the individual customarily engaged in an independently established trade occupation profession or business of the same nature that involved the service performed in the case at hand?
a. Yes: this individual is an independent contractor.
b. No: this individual is an employee.
See. Oliveira v. Advanced Delivery Sys. 2010 Mass. Super. 242, 9 (2010).
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