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property management

I work for a very wealthy family in mass. My job is property management, security and pretty much whatever they ask. Currently they have me employed as an independent contractor but I think I am being misclassified. I work for them 70-90 hours/week and am under direct order on a daily basis. The trust that pays me is based in CT but I work on a property in MA and live in the same town. So my question is... What am I?

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Submitted Mon, 07/27/2015 - 09:27

From the information you provided, it sounds like you may be misclassified and that there may be a good argument that you are an employee rather than an independent contractor.

Massachusetts General Laws, chapter 149, section 148B, provides a three-part test which requires that all three elements must exist in order for an individual to be classified as an independent contractor. The burden of proof is on your employer, and the inability of the employer to prove any one of the three parts of the test means that you should be classified as an employee.

The three-part test includes the following:

1. Freedom from Control - You must be free from control and direction in connection with the performance of the service, both under your contract for the performance of service and in fact in order for you to be an independent contractor.

2. Service Outside the Usual Course of the Employer’s Business - The services that you perform must be “outside the usual course of business of the employer” in order for you to be an independent contractor.

3. Independent Trade, Occupation, Profession or Business - You must be “customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed” in order for you to be properly classified as an independent contractor.

At the very least, based upon what you posted, it does not seem that you are free from the employer's direction and control. You also may not satisfy the other parts of the test. Of course, these issues are very fact-specific so the additional details really do matter. I would be happy to discuss your situation and learn more about your facts at no charge for the conversation. If you wish to do so, please feel free to email me at kkinne@cohenkinne.com.

The other question that comes to mind is whether or not you are entitled to overtime. If you live at the property that you maintain, there is an exemption from overtime in Massachusetts for a "caretaker of residential property, who when furnished with living quarters is paid a wage of not less than thirty dollars per week." That may be a key issue for you going forward.

One way or another, I wish you luck!



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