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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]

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