Somers v. Converged Access, Inc., SJC-10347.

Citation911 N.E.2d 739,454 Mass. 582
Decision Date21 August 2009
Docket NumberSJC-10347.
PartiesRobert SOMERS v. CONVERGED ACCESS, INC., & another.<SMALL><SUP>1</SUP></SMALL>
CourtUnited States State Supreme Judicial Court of Massachusetts

Harold L. Lichten, Boston (Shannon Liss-Riordan with him) for the plaintiff.

Karla E. Zarbo, Assistant Attorney General, for the Commonwealth.

Christopher R. O'Hara, Boston (Matthew J. Fogelman with him) for the defendants.

Donald Siegel, Boston, & Nicole Horberg Decter, for Massachusetts Building Trades Council & another, amici curiae, submitted a brief.



The plaintiff, Robert Somers, twice applied for full-time employment with Converged Access, Inc. (CAI), but neither application resulted in a job offer. He later agreed to work for CAI on a temporary basis as an "independent contractor." After CAI terminated his contract and did not respond to his third application seeking permanent employment, the plaintiff filed suit in the Superior Court against CAI and its chief executive officer and president, Per Suneby. The plaintiff's amended complaint alleges that he was denied employment because of his age, in violation of G.L. c. 151B, § 4 (count one); misrepresentation (count two); unjust enrichment (count three); and, in count four, that he was misclassified as an independent contractor when, as a matter of law under G.L. c. 149, § 148B (independent contractor statute), he should have been deemed an employee and received the wages and benefits enjoyed by CAI employees to which he was entitled under G.L. c. 149, § 148, as amended through St.1998, c. 236, § 10 (wage act), and G.L. c. 149, § 150, as amended through St.2005, c. 99, § 2 (which provides a private civil remedy for "damages incurred" from violations of the independent contractor statute and the wage act). A Superior Court judge granted CAI's motion for summary judgment as to all of the plaintiff's claims. As to count four, the judge concluded that even assuming that the plaintiff had been misclassified as an independent contractor rather than an employee under § 148B, the plaintiff had not demonstrated that he had been damaged by the misclassification, because CAI had presented unrefuted evidence that he had been paid more as an independent contractor than he would have been paid in wages and benefits had he been hired as an employee.

The plaintiff, now represented by counsel, has appealed from the grant of summary judgment.2 We transferred this case here on our own motion to decide whether the "damages incurred" by an individual under § 150 for having been misclassified as an independent contractor rather than an employee, in violation of § 148B, should be measured by subtracting the compensation the plaintiff obtained as an independent contractor from the compensation the plaintiff would have received had he been hired as an employee. We conclude that this measure of damages contravenes both the plain meaning and the primary purpose of the independent contractor statute and the wage act. An employee misclassified as an independent contractor, as a matter of law, is an employee; his contract rate is his wage rate; and his "damages incurred" equal the value of wages and benefits he should have received as an employee, but did not. Accordingly, we vacate that part of the judgment that dismisses count four of the plaintiff's amended complaint. For reasons that will be explained, we affirm that part of the judgment that dismisses count one. We affirm with no discussion the judgment as to counts two and three.3

Background. We summarize the relevant facts in the light most favorable to the plaintiff for purposes of reviewing the allowance of summary judgment. See Chervin v. Travelers Ins. Co., 448 Mass. 95, 96, 858 N.E.2d 746 (2006). The plaintiff holds a bachelor of science degree in electrical engineering from the Massachusetts Institute of Technology (MIT). He had performed work under contract for various corporations, including Sitara Networks, as a software developer, network test engineer, and software quality assurance engineer, but had been self-employed since 2002. In July, 2004, Boris Gdalevich, who had been the plaintiff's supervisor at Sitara Networks and then was a manager at CAI, urged the plaintiff to interview for two open permanent full-time positions at CAI: quality assurance engineer and senior quality assurance engineer. The plaintiff was fifty-six years of age at the time. CAI interviewed the plaintiff, but did not hire him for either position. CAI left the former position unfilled and, on September 20, 2004, hired another applicant, Donald Bispham, for the latter position. Bispham was forty-seven years of age at the time.

In April, 2005, CAI reopened the interview process for the unfilled quality assurance engineer position. The plaintiff applied and was granted an interview for the position, but later that month learned that CAI had decided not to hire him. Gdalevich, who did not interview the plaintiff and did not participate in the employment decision, sent the plaintiff an electronic mail message (e-mail) on April 29, 2005, stating that "they said they just want more in depth experience testing [CAI's Internet protocol application known as Voice-Over IP (VOIP) ]." Gdalevich added in the e-mail that he did not think this was a reason. In a subsequent conversation with the plaintiff, Gdalevich suggested that the real reason that the plaintiff was not hired was his age.

After turning down the plaintiff's second application for employment, CAI offered the plaintiff a position to work as a software quality assurance engineer testing software products created by CAI as an "independent contractor."4 The plaintiff agreed to work for CAI for a sixty-day term commencing on May 18, 2005, and later agreed to an extension for a ninety-day term commencing July 19, 2005. The plaintiff was paid sixty-five dollars per each hour worked. Because CAI deemed him an independent contractor, he was not paid extra for overtime work and received none of the benefits enjoyed by CAI employees: vacation pay, holiday pay, and employer contributions for employee health insurance plans, dental insurance plans, and life insurance plans. Nor was he eligible to join the employees' 401K plans and flexible spending account plans, or to receive CAI's regular contributions to those plans. No amount was withheld from his pay for Social Security or Medicare, or for Federal and State income taxes. In addition, CAI did not include him as an employee for purposes of State unemployment insurance or workers' compensation.

The plaintiff performed all of his work for CAI at its main place of business and headquarters in Billerica. CAI provided him with a workspace, a lab bench, and lab equipment, including three or more computers. Gdalevich supervised, assigned, and controlled all of the plaintiff's work, providing him with detailed instruction as to how and when to perform each test and what time to report to work each day. The plaintiff submitted invoices for each hour worked and was paid on an hourly basis only for hours actually worked. The plaintiff worked in excess of forty hours in some weeks but was not paid overtime.

During the time that he worked at CAI, the plaintiff's job performance was praised by Gdalevich. Another manager, Jean DuBois (later a vice-president of CAI), told the plaintiff that his work was excellent. In July, 2005, all of the software quality assurance engineers in Gdalevich's department, including the plaintiff, received training on each other's engineering work, so that at any time any engineer in the department could take over for any other engineer in the department.

On August 16, 2005, DuBois informed the plaintiff that CAI was not going to continue to fund his position and that his contract would be terminated in thirty days. DuBois also instructed the plaintiff to work on quality assurance of CAI's converged access point (CAP) product during the remaining thirty days of his contract. On the same day he was given notice of the termination of his contract, the plaintiff checked the CAI Web site for available job openings and saw a posting for a "software quality assurance engineer," the same position for which he had applied in April. The new job posting indicated that the position involved quality assurance testing for CAP and required knowledge of VOIP and the ability to use the VOIP test equipment. The plaintiff applied for this job but received no response, even though he had tested all aspects of the CAP product, received training on VOIP test equipment, and used the VOIP test equipment in the CAI lab during the last thirty days of his contract.

As a result of his not being hired for any of the positions he sought at CAI, the plaintiff, on November 1, 2005, filed a complaint against CAI and Suneby with the Massachusetts Commission Against Discrimination (MCAD) alleging age discrimination.5 It was not until January, 2006, after CAI had notice of the plaintiff's filing with the MCAD, that CAI decided to reinterview, and ultimately hire, George McNamara, for the position of software quality assurance engineer. McNamara, who is four years and seven months younger than the plaintiff, had applied for that position in April, 2005, but, like the plaintiff, had not been offered the job.6 McNamara had initially been eliminated from consideration for this position because he did not know enough VOIP and was weak in computer networking.

The plaintiff, appearing pro se, removed the charges of discrimination from the MCAD and commenced this action on May 15, 2006, asserting his claims of age discrimination, misrepresentation, and unjust enrichment. He subsequently applied for, and received, written authorization from the Attorney General to institute and prosecute in his own name an individual suit for damages under the wage act, as required by G.L. c. 149,...

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