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Cape Cod Collaborative v. Director of the Department of Unemployment Assistance, et al. (Lawyers Weekly No. 11-051-17)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-436 Appeals Court CAPE COD COLLABORATIVE vs. DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.[1] No. 15-P-436. Barnstable. January 7, 2016. – May 4, 2017. Present: Hanlon, Sullivan, & Maldonado, JJ. Employment Security, Partial unemployment, Eligibility for benefits, School bus driver, Judicial review. Civil action commenced in the Barnstable Division of the District Court Department on April 29, 2013. The case was heard by W. James O’Neill, J. David A. Guberman, Special Assistant Attorney General, for the defendant. Kevin F. Bresnahan for the plaintiff. MALDONADO, J. In this case, we consider whether Stephanie Hennis, a full-time bus driver for the Cape Cod Collaborative (collaborative),[2] is entitled to partial unemployment compensation benefits for the three days she did not work and was not paid during the week ending Saturday, November 24, 2012, which included the Thanksgiving recess. Because we conclude that G. L. c. 151A, § 28A(c), does not bar the payment of such benefits in the circumstances of this case, we reverse the judgment of the Barnstable Division of the District Court Department (District Court), which reached a contrary conclusion. Statutory framework. We begin with a brief overview of the Unemployment Insurance Law, G. L. c. 151A, so as to put the underlying facts in context. The fundamental purpose of the statute is to “afford benefits to [individuals] who are out of work and unable to secure work through no fault of their own.” Connolly v. Director of the Div. of Unemployment Assistance, 460 Mass. 24, 25 (2011), quoting from LeBeau v. Commissioner of the Dept. of Employment & Training, 422 Mass. 533, 538 (1996). We are required to construe G. L. c. 151A “liberally in aid of its purpose, which purpose is to lighten the burden which now falls on the unemployed worker and [her] family.” G. L. c. 151A, § 74, as appearing in St. 1990, c. 177, § 340. With respect to employees of educational organizations, however, the Legislature has carved out certain exceptions to the general availability of unemployment compensation benefits. As pertinent here, G. L. c. 151A, § 28A(c), as appearing in St. 1977, c. 720, § 29, provides that, with respect to services performed for an educational institution, “benefits shall not be paid to any individual on the basis of such services for any week commencing during an established and customary vacation […]

Subcontracting Concepts, Inc. v. Commissioner of the Division of Unemployment Assistance, et al. (Lawyers Weekly No. 11-147-14)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-269 Appeals Court SUBCONTRACTING CONCEPTS, INC. vs. COMMISSIONER OF THE DIVISION OF UNEMPLOYMENT ASSISTANCE & another.[1] No. 13-P-269. Middlesex. October 8, 2013. – November 12, 2014. Present: Rubin, Milkey, & Agnes, JJ. Employment Security, Employment relationship, Burden of proof. Civil action commenced in the Ayer Division of the District Court Department on August 23, 2011. The case was heard by Michael J. Brooks, J. Jack K. Merrill for the plaintiff. Suleyken D. Walker, Assistant Attorney General, for Commissioner of Unemployment Assistance. AGNES, J. This case concerns the liability of the plaintiff, Subcontracting Concepts, Inc. (SCI), a New York corporation, for contributions to the Massachusetts unemployment compensation fund (fund) pursuant to G. L. c. 151A, §§ 13 & 14. The Division of Unemployment Assistance (DUA) determined that the defendant Kenneth Flynn was an “employee,” who performed “employment” services for SCI, who was his “employer.” SCI contends that Flynn was an independent contractor (and not an employee) under a statutory exemption set forth in G. L. c. 151A, § 2. For the reasons that follow, we conclude that the board of review (board) of the DUA ruled correctly that Flynn was an employee who performed services for SCI, and thus we affirm the judgment of the District Court which reached the same result. 1. Procedural background.[2] This appeal arose out of a claim for unemployment compensation filed by Flynn in September, 2009. Flynn worked from April 4, 2009, to August 12, 2009, when he was terminated. Flynn named Ace Expediters of Alabama, Inc. (Ace), as his employer. Flynn did not work for anyone else during this period.[3] 2. Factual background. The examiner made the following findings of fact which are amply supported by the evidence presented at the hearing. On March 21, 2009, Flynn entered into a written contract with SCI to provide services to “SCI and its customers.”[4] The examiner found that SCI “is engaged in providing drivers and vehicles to client courier services to perform their necessary delivery work. They also provide a payroll service, paying the drivers, who are always hired as independent contractors.” Flynn did not sign a contract with SCI’s courier client for whom he made the deliveries, in this case Ace. Flynn’s agreement with SCI states that “no employer/employee relationship is created under this agreement or otherwise.” No taxes were deducted from Flynn’s pay […]