USA – MASSACHUSETTS Trends and Developments Contributed by: William C. Martucci, Stephen I. Hansen, Lisa O. White and Brandon L. Arber, Shook, Hardy & Bacon LLP
The law also makes pay ranges available to current employees that are offered promotions or position transfers and who request pay information. Covered Employers are prohibited from engaging in retaliation against an employee seeking to enforce their rights or file a complaint related to an alleged violation of the statute. The statute provides the attorney general with exclusive jurisdiction to enforce subsections (b)–(d), which concern the requirements for Covered Employ- ers to provide the pay range information. Independent contractor/misclassification Supreme Judicial Court holds that 7-Eleven franchisees are not employees of 7-Eleven in misclassification action In Patel v 7-Eleven, Inc. (Patel II), 494 Massachusetts 562 (2024) , the Supreme Judicial Court (SJC) resolved a long-running case in which 7-Eleven franchisees claimed that they were misclassified as independ - ent contractors and should instead be considered employees of the franchisor. Responding to the a certified question from the United States Court of Appeals for the First Circuit, the SJC held that the plaintiffs had failed to meet their threshold burden under the Massachusetts Independent Contractor Law (ICL), G.L. c. 149, Section 148B, that they were performing services for the defendant, 7-Eleven and determined that the franchisee-plaintiffs were operat - ing their own independent business. In Patel I, the SJC identified that the threshold ques - tion under the ICL for independent contractor clas - sification was whether any employee claiming to be misclassified actually performs any service for the franchisor. ( Patel v 7-Eleven, Inc. (Patel I), 489 Massa- chusetts 356, 370 (2022). ) For this threshold question, the plaintiff-franchisee bears the burden of proof. If met, the burden then shifts to the franchisor defendant to meet all three prongs of the “ABC” test under the ICL: “(1) the individual is free from control and direc - tion in connection with the performance of the service, both under his contract for the performance of service and in fact”; “(2) the service is performed outside the usual course of the business of the employer”; and “(3) the individual is customarily engaged in an inde- pendently established trade, occupation, profession or business of the same nature as that involved in the service performed.” (Id., at 361.) As the Court in Patel
I noted, nothing prohibits the existence of legitimate franchise relationships not created to evade obliga- tions under the wage statutes. Based on the ruling in Patel I , the trial court entered summary judgment for defendant, 7-Eleven. On appeal, the First Circuit certified a second ques - tion to the SJC. Namely, do the plaintiff franchisees perform services for the franchisor within the mean- ing of the ICL when they perform contractual obliga - tions under the franchise agreement, and to which the franchisor receives a percentage of gross profits? The SJC concluded “no”. The decision confirms that when there is a “true” franchise relationship, plaintiffs are unable to overcome the threshold question under the ICL established in Patel I . Operating a franchised business pursuant to a franchise agreement is insuffi - cient to satisfy the franchisee’s threshold burden. The franchisees, rather than operating the stores under their own goodwill, choose to operate those stores with the benefits of the franchisor’s brand and promise to use the brand licence with standards designed to maintain the quality of the brand. The SJC also stated that the fact that the franchisor benefits from the sale of products or services by the franchisee through a percentage-based royalty payment still does not mean that the franchisees were “providing services” Appeals Court rules that EMT is a “health care provider” allowed to plead a claim under Medical Whistleblower Statute after termination The Massachusetts Appeals Court ruled in Luu v Fal- lon Service, Inc., 105 Appeals Court of Massachusetts, 236 (2025) , that an EMT that alleged that he had been terminated for taking a photograph to report medical misconduct to the Office of Emergency Medical Ser - vices had properly pleaded a claim under the Medical Whistleblower Statute, G.L. c. 149, 187 (b). Reversing the trial court’s order to dismiss, the Appeals Court concluded that the Statute prohibits retaliation by an ambulance service against an EMT employed by it for reporting medical misconduct to the government. As per the facts of the complaint, Nial Luu (Luu) was an EMT employed by Fallon Service, Inc. (Fallon) that reported to a call at Encompass Health Rehabilita- to 7-Eleven under the ICL. Retaliation/whistle-blowers
741 CHAMBERS.COM
Powered by FlippingBook