In Driscoll v. Worcester Telegram & Gazette, the Massachusetts Appeals Court upheld a trial court’s finding that Thomas Driscoll, Jr., a news carrier for defendant Worcester Telegram & Gazette (WT&G), was an employee eligible to receive unemployment benefits under Massachusetts General Laws ch. 151A. The Court held that under Chapter 151A’s “ABC” test, WT&G exhibited sufficient control over Driscoll’s work activities that he should be considered an employee entitled to unemployment benefits.
In 2003, Driscoll filed a claim for unemployment benefits with the Division of Unemployment Assistance (DUA). The DUA denied the claim finding that no “employer-employee relationship” existed. Driscoll sought an evidentiary hearing on the matter, and the review examiner upheld the board’s ruling. Driscoll sought judicial review of the ruling and the trial court reversed the board’s decision.
The appeal focused on whether the board correctly applied the control element of the ABC test, which is used to determine whether an employment relationship exists under Chapter 151A, § 2. The ABC test’s first element addresses whether “the services at issue are performed free from control or direction of the employing enterprise.” WT&G argued that Driscoll was an independent contractor because he worked free from WT&G’s control and direction. The board agreed, relying heavily upon the ruling in Athol Daily News v. Board of Review of the Division of Employment and Training, which held that certain news carriers were independent contractors for purposes of unemployment benefits eligibility.
Reviewing this decision, the Appeals Court found that the news carrier performed services under the control and direction of WT&G. As in Athol, Driscoll’s duties were pursuant to a contract. Unlike the Athol contract, however, Driscoll’s was rife with provisions that undercut WT&G’s claim that Driscoll was free from control and direction. Specifically, it provided WT&G with control over the carriers’ delivery routes, reserved to WT&G the right to demand additional services from carriers, identified district managers responsible for supervising carriers’ work, and required written notification regarding any delegation of duties by carriers.
The Appeals Court decision reemphasizes that a contract declaring independent contractor status does not, in and of itself, ensure a worker independent contractor status. The specific terms of the contract at issue, and actual indicia of control and direction, are critical to determining independent contractor status. The Driscoll case provides further evidence that independent contractor status, whether in the unemployment context or otherwise, is increasingly difficult to establish in Massachusetts.