Daniel.Wolf@masenate.gov; Michael.Rodrigues@masenate.gov; Barry.Finegold@MASenate.gov;
Mike.Rush@masenate.gov; Sal.DiDomenico@masenate.gov; Robert.Hedlund@masenate.gov; Cheryl.CoakleyRivera@mahouse.gov; Lori.Ehrlich@mahouse.gov; John.Rogers@mahouse.gov ; John.Fresolo@mahouse.gov;
Linda.DeanCampbell@mahouse.gov; Denise.Andrews@mahouse.gov; Ryan.Fattman@mahouse.gov;
Demetrius.Atsalis@mahouse.gov; David.Torrisi@mahouse.gov; James.Arciero@mahouse.gov;
sheila.harrington@mahouse.gov
From [Name]
[Business Name]
[Business Address]
[Phone Number]
[Date]
Dear Members of the Joint Committee on Labor and Workforce Development:
I am writing to ask that you vote to move HB 1412 out of committee which is being heard by the Joint Committee
on Workforce Development on November 3. It is critical to the health of my small business as well as hundreds of
others that operate in the Commonwealth that this bill, which restores balance to the definition of who is an
independent contractor, be made law and thus eliminate the climate of fear and uncertainty that we are currently
operating under.
I own a same-day delivery company that does business within Massachusetts. My industry delivers every
pharmaceutical in the state to the drug store or end user, critical machine parts, financial documents, hospital
supplies and many other types of time critical deliveries. Due the varied nature of the type and quantity of
deliveries we make, my industry has utilized independent contractors to deliver goods since its inception over 100
years ago. Recent interpretations of state law have put this business model in serious jeopardy.
I strongly urge that you support this bill. Here’s why:
Massachusetts currently has the most stringent independent contractor statute in the nation, paving the way for a
confusing environment for business. It wasn’t always that way. Prior to 2004, Massachusetts (and other states)
used the standard “ABC” test to assess whether a worker was an independent contractor or an employee. It is the
change to the “B” prong that is particularly troubling to many of the business in this state. In 2004, it was amended
to read: “the service is performed outside the usual course of the business of the employer; and,”
Why does “and” make such a difference? Because it eliminated the principal language (“is performed outside of all
the places of business of the enterprise for which the service is performed”) that the delivery and trucking
industries relied upon to lawfully use independent contractors in the state. Drivers do not work at these
companies’ places of business—they are on the road—and therefore the old B prong is satisfied.
Currently, the test is narrowed to a single factor: the “B” prong. The owner of a delivery or trucking company need
only ask, “Is the independent contractor who provides delivery services, in the same line of business as my
company?” According to the Attorney General, state courts and plaintiff-side attorneys, the answer is YES. And
that’s the problem. The 2004 change meant that all factors cited in the definition had to be satisfied. The result
being my business and many others no longer has the flexibility to bring in experienced independent contractors to
satisfy customer demands leading to turning down jobs and disappointing customers. This is a very bad idea in
today’s economy.
We believe that the 2004 change came as a reaction to complaints about the practices of a small number of
companies. Those complaints got the attention of the Attorney General’s Office who began to scrutinize the
practice. This publicity, coupled with the state’s 2008 enactment of mandatory treble damages for Wage Act
violations, also got the attention of private plaintiff-side attorneys. They saw these changes as a way to target our
industry, knowing that delivery service and courier companies would have difficulty establishing their compliance.
These attorneys continue their attack on my industry and the number of class action lawsuits continues to mount.
I urge you to vote House Bill 1412 out of committee as a first step to restoring balance to the lawful definition of
an independent contractor. This is a law that will help my company and others who rely on outside resources to
respond to customer demand. It is the right thing to do to keep the wheels of industry operating productively and
within the law.