• Superior Court Rejects Independent Contractor Status for Seasonal Delivery Driver
  • April 3, 2009
  • Law Firm: Seyfarth Shaw LLP - Office
  • In Amero v. Townsend Oil Company, a Superior Court judge granted summary judgment in favor of Hughes Amero, a truck driver who claimed that he was incorrectly classified as an independent contractor, even though he provided his own truck, formed a corporation, and signed an independent contractor agreement. In this controversial decision, the Court found that Amero did not qualify as an independent contractor and that he was entitled to overtime pay, even though Townsend drivers are exempt from such payments under Massachusetts General Laws ch. 151, §1A(8).

    Amero worked as a seasonal delivery driver for Townsend from 2000 through 2005. During its peak season, Townsend would classify some of its drivers as employees and others as independent contractors. While Townsend’s drivers received hourly and overtime pay, the company’s independent contractors received a flat rate of $0.09 for each gallon of oil they delivered, were ineligible for overtime, and were required to purchase their own trucks and insurance.

    In January 2005, Amero injured himself at work. When Townsend refused to pay his medical and other expenses, Amero filed suit, alleging violations of the Independent Contractor Law and the Massachusetts Wage Law.

    The Court found that Townsend improperly classified Amero from 2000 through 2004 because Townsend controlled his activities. In reaching this conclusion, the Court noted that Townsend required Amero to sign a non-competition agreement, paint the company’s logo on his truck, and wear a company uniform. Given these facts, the Court found that Amero did not meet the applicable test to be an independent contractor.

    For the work Amero performed from 2004 to 2005, the Court applied the new Independent Contractor Law and again concluded that Amero was not properly classified as an independent contractor. The Court found that Townsend could not possibly show that the services rendered by Amero (delivering oil) were outside the usual course of its business (oil delivery)—a requirement of the statute. The Court also declined to hold that Amero’s incorporation of a motor transportation company qualified him for independent contractor status because, the Court concluded, it was a “mere shell corporation” established to limit Amero’s liability and afford him tax savings.

    In addition, the Court ruled that although Townsend’s status as a motor carrier exempted it from paying overtime to its drivers, Amero was still entitled to receive overtime pay because Townsend had voluntarily paid overtime to its other employees. Without citing to any case law or statutory authority, the Court held that Massachusetts does not allow employers to offer overtime to some employees and avoid paying it to others by classifying them differently.

    This decision highlights how difficult it is for businesses to use independent contractors effectively under Massachusetts law. Moreover, under this Court’s reasoning, Massachusetts employers face potential liability whenever they choose to provide a benefit to certain employees beyond what the law requires. As a trial court opinion, however, it lacks precedential weight, so other courts are not bound by it.