A recent Massachusetts Superior Court decision (Amero v. Townsend Oil Co.) addressing the misclassification of workers as independent contractors reaffirmed the view that if workers are performing services that are part of a company’s core business, they will be deemed employees as a matter of law. The plaintiff in this case, Amero, drove a fuel delivery truck for the defendant, Townsend. Under Amero’s contract with Townsend – and a later contract made with Townsend by Amero’s wholly owned corporation – Amero agreed to deliver fuel oil to Townsend’s customers during peak seasons from 2000 through 2008. Amero provided his own truck, which he insured himself, and the contract classified him as an independent contractor. Amero and other drivers who used their own trucks were paid per gallon of fuel delivered, while drivers who did not have trucks were classified as employees, were paid hourly, and received overtime.

In January 2005, Amero fell while refueling his truck and Townsend denied him compensation for his injuries on the ground that he was an independent contractor as opposed to an employee. Amero sued Townsend, arguing that it misclassified him as an independent contractor and failed to pay him overtime in violation of the Massachusetts Wage Law.

The Superior Court found that two conditions of the 2004 Massachusetts independent contractor law had not been met. First, Amero was not actually free from control in connection with his performance of services. Even though he was not paid hourly and had to provide and insure his own truck, the court found that he was completely under Townsend’s control and direction. Townsend required him to paint the truck with the company logo, dictated where and when he delivered, and determined how much to charge a customer. There was no difference between the duties of the drivers characterized as “employees” and those characterized as “independent contractors.” A second condition of the independent contractor law was also not satisfied, as the services Amero performed were not “outside the usual course of the business of the employer.” In this case, the bulk of Townsend’s business was fuel oil delivery, which was the service provided by Amero. Accordingly, Townsend should have classified and treated Amero as an employee. The court also noted that Amero’s incorporation, while relevant to the independent contractor/employee issue, did not automatically transform Amero into an independent contractor.

Finally, what is most concerning about this case is that, even though Amero and the other drivers were exempt by law from overtime requirements because they were private motor carriers in interstate commerce, Amero was entitled to overtime pay. Because Townsend voluntarily paid its employee drivers overtime pay, Amero, who should have been classified and treated as an employee, was similarly entitled to overtime. Although the damages have not yet been determined in this case, the law under which Amero prevailed entitles him to treble damages and attorneys’ fees.



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