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Boston Bicycle Couriers11/18/2002
Suffolk.
August 29, 2001
Employment Security, Employment relationship, Exemption, Judicial review. Administrative Law, Substantial evidence.
Civil action commenced in the Boston Municipal Court Department on November 14, 1997.
The case was considered by Annette Forde, J.
This case concerns the liability of Boston Bicycle Couriers, Inc. (BBC), for contributions to the State unemployment compensation fund under G. L. c. 151A, the Massachusetts Employment and Training Law (Act). See G. L. c. 151A, §§ 13-14. BBC contends that it was exempt from contributions to the fund because delivery couriers working for BBC, such as Anthony DiMare (the claimant for unemployment benefits in this case), were independent contractors. Therefore, BBC asserts the company fell within the independent contractor exemption set forth in G. L. c. 151A, § 2.,
1. Procedural and factual background.
The case began when DiMare, a courier, left his position at BBC and applied to the Division of Employment and Training (DET) for unemployment benefits. While this unemployment application was pending, the DET status department, acting on its own motion, commenced an investigation of BBC. See G. L. c. 151A, § 12. The purpose of the DET investigation was to reach a status determination concerning whether BBC was subject to the Act's provisions for mandatory contributions to the unemployment compensation fund in connection with wages paid to employees.
Following proceedings at several levels of administrative review, a board of review (board) of the DET determined that BBC had not met its burden of proof on the tripartite elements of the independent contractor exception in § 2. The board, accordingly, held that "the services performed by the claimant [DiMare], as well as others performing services in similar circumstances, are deemed to be in employment," and subject to the Act. By this status determination, BBC, among other requirements, would be responsible for contributions to the unemployment compensation fund based on the wages BBC paid to the couriers. BBC filed an appeal with the Boston Municipal Court. See G. L. c. 151A, § 42. A judge of that court reversed the determination of the board that BBC was subject to the Act. The board then filed this appeal. We reverse.
A detailed description of the facts in the administrative record concerning the nature of DiMare's activities in working for BBC and the terms and conditions of a contract that BBC had drafted and provided for execution by drivers, such as DiMare, is reserved for that part of the analysis addressed to BBC's contention that DiMare's activities were such as to render him an independent contractor. At this point, it will suffice to note that BBC is in the business of providing same-day pick-up and delivery services on an on-call basis. The pick-up items are generally letters and packages to be delivered between offices. BBC engages approximately twelve drivers for these courier services, of which DiMare was one.
2. The legal framework for the § 2 independent contractor exemption.
The trigger for an employer's contribution liability to the unemployment compensation fund under the Act is whether there exists an employment relationship between the employing unit and an individual performing services. The term "employment" under the Act is inclusive, and the Act is of broad reach. To that end, the Act carves out exceptions, limited in number and scope.
The provision for an independent contractor exemption from the Act is set forth in G. L. c. 151A, § 2. See note 2 for the pertinent text of § 2. In 1971, the Legislature dramatica
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