Who is an Employee?

While this may seem like a straightforward question, it is frequently a source of confusion among business owners, and it is in fact common for employers to misclassify “employees” as “independent contractors” (aka “1099 workers”). This is especially true in Massachusetts, which has one of the strictest laws defining “independent contractors” in the country. Sometimes employers treat workers as independent contractors to avoid the added costs and complexities of hiring employees, and sometimes workers request to be treated as independent contractors. In all cases, it is important to be aware of applicable laws to ensure that you are not misclassifying any employees as independent contractors.

Under Massachusetts law, most individuals performing work for a business are considered to be employees (and as such are subject to payroll taxes, workers comp, unemployment insurance, and other employment laws). An employer who instead wants to treat someone doing work for them as an independent contractor has to show that all three of the following conditions apply:

1. the work is done without the direction and control of the employer;
2. the work is performed outside the usual course of the employer’s business; and
3. the work is done by someone who is customarily engaged in their own independent business, occupation, profession, or trade doing this same kind of work.

Few individuals working for farms meet these conditions to qualify as independent contractors. See this advisory for more details on and how the Massachusetts Attorney General’s Office understands and enforces this law on the proper classification of independent contractors vs. employees.

Note that the laws related to proper employee classification vary from state to state. This page is designed to help farmers ensure that they are adhering to applicable laws, but it is not a legal document and is not exhaustive.