From Littler, Christopher B. Kaczmarek and Kevin E. Burke report a recent Massachusetts court case which said that real estate agents were not covered by Massachusett’s strict independent contractor statute. Christoper and Kevin write:
“On June 3, the Massachusetts Supreme Judicial Court held that the Commonwealth’s independent contractor law does not apply to real estate salespersons licensed under, and affiliated with and working for, a licensed brokerage firm. The court’s ruling in Monell v. Boston Pads, LLC, SJC-11661, although limited in scope, represents a significant victory for the real estate brokerage industry.
In Monell, the plaintiffs, a group of real estate salespersons, sued various real estate brokerage firms, claiming that they had been misclassified as independent contractors. Specifically, the plaintiffs claimed that they failed to satisfy the requirements for independent contractor status under the Massachusetts Independent Contractor Law, Mass. Gen. Laws ch. 149, § 148B. The Commonwealth’s stringent law is strictly applied by courts and provides that an individual may only qualify as such if: (1) he or she is free from control and direction in connection with the performance of the service; (2) the service is performed outside the usual course of the business of the employer; and (3) he or she is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
In response, the defendants argued that the requirements imposed by the Massachusetts real estate licensing statute made it impossible for any real estate salesperson to ever satisfy the requirements of the Massachusetts Independent Contractor Law. Among other things, the licensing statute requires salespersons to affiliate with a licensed broker, forbids them from conducting their own real estate business, and demands that all transactions must be approved by a licensed broker.
In addressing the tension between these two laws, the Supreme Judicial Court sided with the brokerage firms. In so doing, the court noted that the real estate licensing statute specifically states that “[a] salesman may be affiliated with a broker either as an employee or as an independent contractor…” The court also relied heavily on the traditional principle of statutory construction that a more specific statute (the real estate licensing law) should control over the provisions of a general statute (the Massachusetts Independent Contractor Law). Thus, the court held that the Massachusetts Independent Contractor Law does not apply to real estate salespersons…”