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Workers Comp: Masseuse as Independent Contractor
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Workers Comp: Masseuse as Independent Contractor

Kara Donohoe has worked at Harvard University's Health Services Center for Wellness since 2004. She provides massages for faculty and their families (and possibly for students, the website is not clear). She is classified as an independent contractor, and is thus on her own for all benefits, which include paid sick and vacation leave, social security, workers comp, not to mention discounted classes at the esteemed institution of higher learning.

Donohoe is suing Harvard for violation of Massachusetts wage law. She claims that she should be classified as an employee and receive all due benefits because Harvard controls her work: they set her schedule, determine her rates and her breaks and prohibit her from collecting tips. Donohoe's lawsuit encompasses the work status of other independent contractors who work for Harvard, where the work is under the direct control of the university.

The Criteria
Massachusetts has established a fairly rigid, three-pronged criteria for independent contractors. All three criteria must be met: contractors must be free from control (the above details call Donohoe's independence into question); they must provide a service outside the usual course of the employer's business (this criteria would be met); and they must be involved in an independently established trade, available to others (this would depend on the hours committed to Harvard). If Donohoe worked a significant portion of her time at Harvard, she is unlikely to meet the criteria for independence.

Preserving the Independence in Independent Contractors
To avoid lapsing into an employment relationship, employers can take a few steps to reinforce independence: use contractors on an intermittent, part-time basis; make sure that these contractors offer their services to others; develop an employment contract for any services provided; and perhaps most important, provide maximum flexibility to the contractor in determining how the work is performed. Once an employer dictates how the work is to be done, the contractor is very likely to morph - retroactively - into an employee.

Independent contractors can still be a viable part of an employer's workforce Massachusetts, but given the state's strict rules, it's crucial to think through the entire relationship, making sure that each of the three-pronged criteria has been met and documented.

Feel free to contact us with any questions about this ongoing conundrum.

Jon Coppelman
Senior Workers Compensation Consultant
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