MASSACHUSETTS EMPLOYMENT LAWYERS ASSOCIATION & THE MASSACHUSETTS BUILDING TRADES COUNCIL, AFL-CIO

1. COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
Suiiolk, No. SUCV2011-3756
SAC-11661
NESTO MONELL, JONATHAN GIBBON, RACriAEL BUTCHER,
BENJAMIN SMITH, LINDSEY" BURNS, and ANN McGOVERN, on
behalf of themselves and others sirr.ilarly situated,
Plaintiffs - Appellants,
V.
BOSTON PADS, LLC, JACOB REALTY, LAC, NEXTGEN REALTY,
INC., RENTi~IYUNIT.CONI, INC., D~NI~TRIOS SALPOGLOU, and
YUAN HUANG,
Defendants - Appellees.
B~ZIEF OF THE MASSACHUSETTS EMPLOYMENT LAWYERS
ASSOCIATION & THE MASSF,CHUSETTS Bt7II,DING TRADES
COUNCIL, AFL-CIO, AMICI CURIAE
Ian O. Russell (BBO #673387.)
PYLE ROME EHRENBERG ~C
2 Liberty Square, 10th door
Boston, MA 02109
(617) 367-7200
irussell@pylerome.com
Nicole Horberg Decter (BBO #658268)
SEGAL ROITMAN, LLP
111 Devonshire Street, 5th 'Floor
Boston, MA 02109
(617) 742-0208
z~decter@segalroitman.com

2. TABLE OF CONTENTS
I. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW. ...1
II. STATEMENT OF THE INTEREST OF THE AMICI. .........1
III. STATEMENT OF THE CASE. ..........................3
III. ARGUMENT. .......................................4
A. THE INDEPENDENT CONTRACTOR STATUTE
EMBODIES VITAL STATE INTERESTS AND
MUST BE BROADLY CONSTRUED TO
EFFECTUATE THOSE INTERESTS. ................4
1. Misclassification of employees harms
employees and the Commonwealth. .......4
2. Consistent with its language and
purpose the Independent Contractor
Statute must be construed broadly. ....6
B. THE PLAIN LANGUAGE OF M.G.L. c. 112,
~ 87RR, THE REAL ESTATE LICENSING STATUTE,
DOES NOT CREATE AN EXCEPTION TO
M.G.L. c. 149, § 148B, THE
INDEPENDENT CONTRACTOR STATUTE. ...........12
C. THE LEGISLATIVE HISTORY OF THE
RELEVANT STATUTES CONFIRMS THAT
REAL ESTATE AGENTS ARE NOT EXEMPT
FROM M.G.L. c. 149, ~ 148B. ...............15
1. The only attempt to exclude
real estate agents from coverage
under ~ 148B failed. .................15
2. A worker may be an employee
for some purposes and not others
and when the Legislature has
exempted workers from coverage by
laws intended to protect employees,
it has done so explicitly. ...........18
3. The 2010 amendment to M.G.L. c. 112,
~ 87RR, merely acknowledged that
real estate agents - like other
types of employees - may be paid
on a commission basis. ...............21
i

3. D. HYPOTHETICAL CONCERNS ABOUT COMPLYING
WITH THE LAW IS NOT A VALID REASON
FOR EXEMPTING THE REAL ESTATE INDUSTRY
FROM M.G.L. c. 149, ~ 148B. ...............22
E. BOSTON PADS IS NOT A TYPICAL REAL ESTATE
COMPANY. ..................................25
CONCLUSION
...•
.....................................29
CERTIFICATE OF SERVICE ..............................31
CERTIFICATE OF COMPLIANCE ...........................32
ii

4. TABLE OF AUTHORITIES
Cases
Awuah v. Coverall North America, Inc.,
460 Mass. 484 (2011)...............................24
.....Cook v. Patient Edu, LLC,
465 Mass. 548 (2013)........ ......................10
Depianti v. Jan-Pro Franchising Int'1, Inc.,
465 Mass. 607 (2013)...........................passim
Donovan v. Agnew,
712 F.2d 1509 (lst Cir. 1983)......................18
Duracraft Corp. v. Holmes Products Corp.,
427 Mass. 156 (1998)...............................16
Lutl2er v. Z. Wilson, Inc.,
528 F. Supp. 1166 (S.D. Ohio 1981).................20
Perdomo v. Ask 4 Realty & Mgmt., Inc.,
298 F. App'x 820 (11th Cir. 2008)..................20
Smith v. Winter Place, LLC,
447 Mass. 363 (2006)................................9
Somers v. Converged Access, Inc.,
454 Mass. 582 (2009).............................5, 9
Taylor v. Eastern Connection Operating, Inc.,
465 Mass. 191 (2013)................................6
Weems v. Citigroup Inc.,
453 Mass. 147 (2009)...............................22
Statutes
26 U.S.C. ~ 3121 ....................................18
29 U.S.C. ~ 201 .....................................18
29 U.S.C. § 203 .....................................18
M.G.L. c. 112, ~ 87RR .......................12, 13, 21
M.G.L. c. 149, ~ 148 ........................18, 21, 25
M.G.L. c. 149, § 148B ......................5, 6, 8, 22
M.G.L. c. 149, ~ 150 ................................22
M.G.L. c. 149, ~ 150A ...............................23
iii

5. M.G.L. c. 149, §~ 47 ................................23
M.G.L. c. 151A, ~ 6 .................................18
M.G.L. C. 151A~ ~ 6(P) ... ..........................19
M.G.L. c. 152, ~ 1 ..................................18
M.G.L. c. 152, ~ 1(4) ............................ 19
Other Authorities
An Advisory from the Attorney General's Fair Labor
Division on M.G.L. c. 149, s 148B, 2008/1........4, 8 ',
Regulations '
26 C.F.R. § 31.3121 .................................18
455 CMR ~ 2.01 ......................................25
iv

6. I. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW.
Amici adopt the statement of the issues presented
by Plaintiffs-Appellants.
II. STATEMENT OF THE INTEREST OF THE AMICI.
The Massachusetts Employment Lawyers Association
("MELA") is a voluntary membership organization of over
100 lawyers who regularly represent employees in labor,
employment, and civil rights disputes in Massachusetts.
MELA is an affiliate of the National Employment Lawyers
Association (~~NELA"), a membership organization of over
3,000 lawyers who regularly represent employees in such
disputes. NELA is one of the largest organizations in
the United States whose members litigate and counsel
individuals, employees, and applicants with claims
arising out of the workplace.
As part of its advocacy efforts, MELA has filed
numerous amicus curiae briefs before this Court, singly
or jointly with other amici. The interest of MELA in
this case is that of protecting the rights of its
members' clients, by ensuring that M.G.L. c. 149, ~
148B's goals of preventing employee misclassification
and wage theft are fully realized. Amici have
frequently dealt with employers who rely upon the
misclassification of workers as independent contractors
1

7. as a means of avoiding application of the
Commonwealth's wage laws. Often, the improper acts of
these employers include attempting to impose the costs
and risks of running a business upon their workers by
charging workers improper fees and making improper
deductions from their wages. Amici believe that it is
vitally important that M.G.L. c. 149, ~ 148 continue to
be applied as it was drafted and thus that it be
construed to cover all industries in the Commonwealth.
The Massachusetts Building Trades Council, AFL-CIO
("N.~TC"), is a statewide coalition consisting of 74
local labor unions who represent over 75,000 men and
women employed in Massachusetts in the construction
industry. The MBTC's affiliated local unions represent
workers in every facet of private and public sector
construction work, including but not limited to,
electricians, laborers, elevator constructors,
carpenters, drivers, masons, plumbers, pipefitters, and
painters, sprinkler fitters and teamsters. The MBTC
has, on a routine basis, submitted amicus briefs to
this Court where issues critical to workers' economic
security, health, and safety within the Commonwealth.
This case is of exceptional. importance to the MBTC and
its affiliates, because stringent enforcement of the
2

8. Independent Contractor, Overtime., and Non-payment of
Wages statutes protect all workers' economic security
and physical safety, maintain a level playing field for
law-abiding companies, and ensure that the Commonwealth
has appropriate enforcement tools to garner compliance
with its laws. Narrowing the scope of the Independent
Contractor Statute to exclude categories of workers -
without any implicit, much less explicit, statutory
exclusion (as the Defendants-Appellees and their amici
advocate) - strains credulity. More importantly, such
an interpretation could compromise the vital
protections guaranteed under the Statute, not only to
real estate agents, but to any category of workers that
an employer elected to misclassify for the purpose of
denying the payment of compensation due under the
Commonwealth's laws.
III. STATEMENT OF THE CASE.
Amici adopt the Statement of the Case presented
by Plaintiffs-Appellants, including the Statement of
Prior Proceedings and the Statement of Facts.
3

9. III. ARGUMENT.
A. THE INDEPENDENT CONTRACTOR STATUTE EMBODIES
VITAL STATE INTERESTS AND MUST BE BROADLY
CONSTRUED TO EFFECTUATE THOSE INTERESTS.
1. Misclassification of employees harms
employees
and... the.....Commonwealth...
The need for proper classification of individuals
in the workplace has been recognized at all levels of
government in the Commonwealth. The Attorney General
has stated that:
Entities that misclassify individuals are in many
cases committing insurance fraud and deprive
individuals of the many protections and benefits,
both public and private, that employees enjoy.
Misclassified individuals are often left without
unemployment insurance and workers' compensation
benefits. In addition, misclassified individuals
do not have access to employer-provided health
care and may be paid reduced wages or cash as
wage payments.
An Advisory from the Attorney General, Amendments to
Massachusetts Independent Contractor Law, Advisory
2008/1 (Add. 1).l Similarly, Governor Deval Patrick,
in creating a Joint Task Force to address employee
misclassification, stated .that:
[T]he practice of employee misclassification: (1)
exploits vulnerable workers and deprives them of..
legal benefits and protections; (2) gives
unlawful businesses an unfair competitive
advantage over lawful businesses by illegally
1 References to the Addendum to this brief are cited as
"Add. [page number]." -
0

10. driving down violators' taxes, wages, and other
overhead costs; (3) defrauds the government of
substantial tax revenues; and (4) harms consumers
who suffer at the hands of unlicensed businesses
that fail to maintain minimum levels of skills
and knowledge.
Executive Order No. 499 (Add. 8-9).
The Legislature has attempted to address these
concerns by passing legislation aimed at .curbing
misclassification. One such piece of legislation is
M.G.L. c. 149, § 148B, the Independent Contractor
Statute. This statute, inter a1ia, establishes a test
for determining whether a worker is an "employee" for
purposes of the application of chapter 149, which
includes the minimum wage and overtime laws, and
allows for a suit to be brought against an employer
for failing to properly classify its workers.
This Court has recognized that one of the
"legislative purposes] behind the independent
contractor statute is to protect employees from being
deprived of the benefits enjoyed by employees through
their misclassification as independent contractors."
Somers v. Converged Access, Inc., 454 Mass. 582, 59.2
(2009); see also Depianti v, ~7an-Pro Franchising
Int'1, Inc., 465 Mass. 607,. 620 (2013) ("The purpose
of the independent contractor statute is `to protect

11. workers by classifying them as employees, and thereby
grant them the benefits and rights of employment,
where the circumstances indicate that they are, in
fact, employees'."), quoting Taylor v. Eastern
Connection Operating, Inc., 465 Mass. 191, 198 (2013).
2. Consistent with its language and
purpose the Independent Contractor
Statute must be construed broadly.
In "light of the statute's broad remedial
purpose," this Court has held that it would be an
"error" to read a limitation into the statute where
the statutory language does not require it. Depianti,
465 Mass. at 621. The statute explicitly applies to
individuals "performing any service." M.G.L. c. 149,
~ 148B (emphasis added). Nothing in the text of the
statute limits its application to certain industries
operating in the Commonwealth.
However, the Superior Court, in ruling that real
estate agents are exempt from coverage under ~ 148B,
wrongly created a limitation that the statutory
language does not require. In their amicus brief, the
Massachusetts Association of Realtors and the Greater
Boston Real Estate Board ("MAR Amici") likewise urge
the Court to adopt an exceedingly narrow
interpretation of the Independent Contractor Statute,
C~

12. i one that is not supported by the statute's language or
its purpose. They argue that the statute was
originally intended to govern the construction
industry and that, therefore, "the Court should not
presume that the legislature intended to disrupt the
settled expectations of those in the real estate
industry." MAR Amicus Br. at 20. As discussed in
more detail below, see infra at 15-17, this would not
be the first time that the real estate industry has
tried - and failed - to exclude itself from the
Independent Contractor Statute. In any event, the
language, purpose, and legislative history of the
Statute all require the Court to reject Defendants-
Appellees' and their amici's attempts to artificially
narrow its scope.
The plain language of the Independent Contractor
Statute applies to all industries. While the MAR
Amici cite the title of the chapter of the session
laws through which the Independent Contractor Statute
was enacted as evidence that it was intended to be
limited to the public construction sector, MAR Amicus
Br. at 21, the title of th`e Independent Contractor
Statute itself is not limited to any particular
industry; the statute is entitled: "Persons performing

13. service not authorized under this chapter deemed
employees; exception." M.G.L. c. 149, ~ 148B. The
language in the body of the statute is similarly
broad. It applies to "any service" and its remedies
,.
apply against "(w]hoever fails to properly classify an
individual as an employee Id., (a), (d)
(emphasis added).
A broad interpretation of the Independent
Contractor Statute is similarly supported by its
purpose, as this Court has enunciated in Somers and
Depianti, discussed above. The Attorney General's
Office has similarly emphasized the importance of a
broad application of the statute, stating that "[t]he
need for proper classification of individuals in the
workplace is of paramount importance to the
Commonwealth." An Advisory from the Attorney
General's Fair Labor Division on M.G.L. c. 149, ~
148B, 2008/1 (Add. 1).
Notably, the Attorney General made clear in its
Advisory that the statute is not limited to the public
construction industry, explaining: "The 2004
amendment was part of legislation making broad changes
to.the laws governing the public construction
industry. However, the Law, including the 2004
'3

14. amendment, applies more broadly to a wide range of
industries." Id. (emphasis added). The Attorney
General recognizes no exemption from the statute for
the real estate industry - a significant point, given
that the Attorney General's interpretation of ~ 148B
is entitled to substantial deference. See Smith v.
Winter Place, LLC, 447 Mass. 363, 368 (2006).
The fact that the real estate industry
customarily classifies agents as independent
contractors is also not a basis for exempting that
industry from the Independent Contractor Statute. All
industries are affected when a new statute governing
the treatment of workers is enacted. If those
industries have a custom of violating the law, then
naturally they will be more greatly affected.
However, that is no reason not to enforce the statute
against them. To the contrary, to effectuate the
public policy underlying the Independent Contractor
Statute — "to protect employees from being deprived of
the benefits enjoyed by employees through their
misclassification as independent contractors," Somers,
454 Mass. at 592 — courts must apply the statute to
industries that have traditionally violated it.
~~

15. The MAR Amici's argument that the existence of
criminal remedies in the statute "further supports the
conclusion that the statute should not be interpreted
to apply to real estate professionals," MAR Amici Br.
at 27, must fail for two reasons. First, this is not
a criminal case advanced by the Attorney General; it
is a civil case brought by employees. The private
civil action and the criminal enforcement provisions
are separate parts of the wage statutes. Depianti,
465 Mass. at 612 ("The Attorney General's right to
enforce G.L. c. 149 and the right of private citizens
to enforce provisions of that chapter represent
parallel and distinct enforcement mechanisms.").
Second, where, as here, there is no ambiguity in
either the language or intent of the statute, there is
no basis for construing it to exclude an entire
industry despite the absence of any statutory language
suggesting such an exclusion. See Cook v. Patient
Edu, LLC, 465 Mass. 548, 555-56 (2013). This is true
whether the statute contains criminal penalties or
not. Id.z
2 Moreover, the fact that common la.w vicarious
liability principles may
apply
to the broker-agent
relationship does not mean, as the MAR Amici suggest,
that it would be impossible for real estate companies
m

16. In order to protect all employees in the
Commonwealth from wage theft and other abuses arising
from misclassification, it is vitally important that
this Court not adopt a limitation to the application
of ~ 148B that is not required by the statutory
language. There is no indication that the Legislature
ever determined that wage theft through
misclassification does not occur in the real estate
industry or that businesses within that industry
should be immune from suits for recovery of lost
wages.3
to comply with the requirements of the Independent
Contractor Statute. The vicarious liability doctrine
applies in all sorts of non-employment contexts,
including, for example, the franchisor-franchisee
context, as this Court recognized in Depianti, 465
Mass. at 616. There is simply no correlation between
this doctrine, which applies in actions brought by
consumers or other third parties, and the Independent
Contractor Statute, which applies to determine whether
an entity must comply with the wage laws.
3 This is true even where a real estate agent is paid
only through commissions, which are, as explained
below, indisputably considered wages under the laws of
the Commonwealth.
11

17. B. THE PLAIN LANGUAGE OF M.G.L. c. 112, ~ 87RR,
THE REAL ESTATE LICENSING STATUTE, DOES NOT
CREATE AN EXCEPTION TO M.G.L. c. 149, §
148B, THE INDEPENDENT CONTRACTOR STATUTE.
Real estate licensing is regulated by M.G.L. c.
1.12, ~ 87RR That....statute provides ....that.....
A salesman may be affiliated with a broker
either as an employee or as an independent
contractor and may, by agreement be paid as
an outside salesperson on a commission-only
basis but shall be under such supervision of
said broker as to ensure compliance with the
section and said broker shall be responsible
with the salesman for any violation of
section eighty-seven AAA committed by said
salesman.
M.G.L. c. 112, ~ 87RR. A plain reading of this
language establishes only: (1) that the Legislature
acknowledges that real estate agents have been
classified as both employees and independent
contractors within the real estate industry, (2) that
real estate agents may be paid on a commission-only
basis, and (3) that, regardless of whether a real
estate agent ~s classified as an employee or an
independent contractor, and regardless of whether a
real estate agent is paid on a commission basis, a
real estate agent must be under sufficient supervision
by a broker in order to ensure compliance with the
other obligations spelled out in ~ 87RR.
12

18. Nothing in the language of this licensing statute
creates an exemption from the Independent Contractor
Statute. On its face, the statutory language gives no
indication that it is intended to guarantee that a
broker be allowed to classify all real estate agents
as independent contractor for all purposes. Nor does
it indicate that it is intended to exempt real estate
agents from coverage under M.G.L. c. 149, ~ 148B.
Rather, it is intended solely to address the
requirement that a broker supervise an agent to ensure
compliance with the licensing requirements of the
statute, and mandates that, regardless of the manner
in which the real estate agent is classified, this
supervision will be provided.
In other words, a broker may classify a real
estate agent as either an employee or an independent
contractor, so long as the agent meets the applicable
tests for those classifications, "but" the agent must
still be subject to the statutorily required
supervision, regardless of how the agent is
classified. M.G.L. c. 112, ~ 87RR (emphasis added).
The use of the word "but" informs a broker that the
proper supervision must be provided, regardless of
whether the real estate agent is an employee or an
~~

19. independent contractor. Thus, a broker may not avoid
providing the required supervision merely by ',
classifying an agent as an independent contractor.
The Superior Court erroneously interpreted M.G.L.
c. 112, ~ 87RR, to guarantee that a real estate
business may, at its discretion, treat a real estate
agent as an independent contractor for all purposes. r
Indeed, the entire opinion is based upon the Superior
Court's conclusion that, under ~ 87RR, a real estate
business must be able to treat real estate agents as
independent contractors and that the Independent
Contractor Statute cannot apply to real estate agents.
Thus, the Superior Court held that ~ 87RR created an
exemption from coverage under ~ 148B for real estate
agents.
However, ~ 87RR does not address the issue of
whether a real estate agent is an independent
contractor or an employee for purposes of the payment
of wages - despite also acknowledging that real estate
agents can be "employee[s] or independent
contractor[s]." M.G.L. c. 112, ~ 87RR. Accordingly,
the question of whether a real estate agent is an
employee for wage purposes. is determined in the same
way as it. is for any other employee, namely, by
14

20. applying the test established by ~ 148B. Because ~
87RR does not address the question of whether a real
estate agent is an employee for the purposes of the
payment of wages, it does not conflict with ~ 148B and
it does not create an exemption to that statute.
C. THE LEGISLATIVE HISTORY OF THE RELEVANT
STATUTES CONFIRMS THAT REAL ESTATE AGENTS
ARE NOT EXEMPT FROM M.G.L. c. 149, ~ 148B.
1.. The only attempt to exclude real estate
agents from coverage under ~ 148B
failed.
Had the Legislature intended to exempt the real
estate industry from the Independent Contractor
Statute through the real estate licensing statute, it
would have done so through the use of clear and
explicit language. Yet the real estate licensing
statute does not even mention §.148B. Indeed, the
only time that an attempt was made to explicitly
exempt real estate agents from coverage under M.G.L.
c. 149, ~ 148, the legislation was vetoed by the
Governor. The Legislature included the following
language in Section 8 of Chapter 304 of the Acts of
~~:
The second paragraph of section 87RR of
chapter 112 of the General Zaws is hereby
amended by striking out the third sentence
and inserting in place thereof the following
sentence: Notwithstanding section 1488 of
15

21. Chapter 149, a salesmen or broker may be
affiliated with a broker either as an
employee or as independent contractor, as
determined by their written agreement and
customer work practices, but shall be under
such supervision of the broker as will
ensure compliance with this section ...
(Add. 42)(emphasis added). However, Governor Patrick
vetoed this language. In his message to the
Legislature, he stated:
I am disapproving section 8 because it seeks
to exempt real estate sales persons and
brokers from the independent contractor
laws, G.L. c. 149, ~ 148B, recently enacted
to reduce employee misclassification and
abuse of workers' status. The section would
allow real estate sales persons and brokers
to rely on written agreements to avoid the
classification rules for independent
contractors. The Secretary of Labor and
Workforce Development and I are working to
address employee misclassification in our
underground economy task force, and we are
concerned that this section is inconsistent
with that objective.
(Add. 47).
This legislative history establishes that the
Legislature believed that real estate agents were
covered by ~ 148B and that an explicit amendment was
necessary to create an exemption.4 The Governor viewed
4 See Duracraft Corp. v. Holmes Products Corp., 427
Mass. 156,, 163 (1998) ("Statutes ar.e to be
interpreted, not alone according to their simple,
literal or strict verbal meaning, but in connection
with their development, their progression through the
~~~

22. this amendment as creating an exemption and vetoed it
because he did not believe an exemption was good
policy. Had the 2008 amendment been enacted, it would
clearly have exempted real estate agents from coverage
under ~ 148B. However, the amendment did not become
law - the Legislature passed a different amendment
taking into account the Governor's comments.
Consequently, the exemption relied upon by the'
Superior Court and Defendants-Appellees simply does
not exist.
Accordingly, the legislative history regarding
this issue is clear. No specific exemption for real
estate agents from coverage under M.G.L. c. 149,
~ 148B, has ever existed. The one time that the
Legislature sought to adopt such an exemption, it was
vetoed because the Governor did not agree with the.
attempt "to exempt real estate sales persons and
brokers from the independent contractor laws, G.L. c.
149, ~ 148B." (Add. 47). No such exemption has been
become law.
legislative body, the history of the times, prior
legislation. ").
?_7

23. '' 2. A worker may be an employee for some.
purposes and not others and when the
Legislature. has exempted workers from
coverage by laws intended to protect
employees, it has done so explicitly.
The various statutes that protect emp,loye~es often
have their own definition, or test, that establishes
whether a worker is an "employee." For example, the
definition of employee is different under the wage -
laws, workers' compensation laws, and unemployment
laws. See M.G.L. c. 149, ~ 148; M.G.L, c. 152, ~ 1;
M.G.L. c. 151A, ~ 6. Similarly, the test for
determining whether someone is an employee for federal
income tax purposes is different than the test for
determining whether someone is an employee under the
federal Fair Labor Standards Act, 29 U.S.C. ~ 201, et
seq, Compare 26 U.S.C. ~ 3121(d)(2) (defining
"employee" status for federal tax purposes) and 26~
C.F.R. ~ 31.3121 (adopting test for determining if
worker is an "employee" for tax purposes), w.i.th 29
U.S.C. ~ 203 (defining "employee" under the FLSA) and
Donovan v. Agnew, 712 F.2d 1509, 1510-11 (1st Cir.
1983) (adopting "economic realities" test for
determining if worker is an employee under FLSA).
When a category of workers is specifically
excluded from coverage by one of these statutes, the

24. Legislature has made the exemption explicit.
Specifically, when it has exempted real estate agents
paid on a commission-only basis from coverage under
the workers' compensation laws and the unemployment
compensation laws, it has done so explicitly. See
M.G.L. c. 152, ~ 1(4) (defining "Employee", as "every
', person in the service of another under any contract of
hire, express or implied, oral or written, excepting ...
a salesperson affiliated with a real estate broker
pursuant to an agreement which specifically provides
for compensation only in the form of commissions
earned from the sale or rental of real property");
M.G.L. c. 151A, ~ 6(p) ("The term `employment' shall
not include [s]ervices performed by an
individual as a real estate broker or salesman if he
is licensed by the state as a real estate broker o.r
salesman, and if he is remunerated solely by way of
commission"}.
Accordingly, it is hardly dispositive that M.G.L.
c. 112, ~ 87RR acknowledges that, depending upon the
circumstances, a real estate agent may be an employee
or an independent contractor. Neither is it
dispositive, as Defendants-Appellees appear to argue,
that the United States Congress or the Legislature of
19

25. the Commonwealth have exempted real estate agents from
certain tax laws. Brief of Defendants-Appellees at
~~~
Notably, real estate agents are not specifically
exempt from coverage under the most important federal
law related to the payment of wages, the FLSA. Real
estate agents, or salespersons, are covered by the
FLSA except where, based upon the specific facts
related to the work performed, they are found to fit
under one of the broader exemptions established by
that law for an outside salesperson or independent
contractor. See, e.g., Luther v. Z. Wilson, Inc., 528
F. Supp. 1166, 1168 (S.D. Ohio 1981) (finding that
employer had not established that a real estate
salesperson was exempt under outside sales exemption
and thus finding that salesperson was owed minimum.
wages and overtime); Perdomo v. Ask 4 Realty & Mgmt.,
Inc., 298 F. App'x 820, 821 (11th Cir. 2008) (applying
multi-factor economic realities test to determine
whether real estate salesperson was an independent
contractor and thus exempt from coverage under the
FLSA).
Consequently, and as with any other type of
worker, the question of whether a real estate agent is
20

26. an employee under § 148B turns on the language and
interpretation of that statute as applied to the
specific facts of this case. If a category of worker
is exempted from coverage by a statute, that exemption
is created through the use of specific language.
3. The 2010 amendment to M.G.L. c. 112, ~
87RR, merely acknowledged that real
estate agents - like other types of
employees - may be paid on a commission
basis.
If the Legislature had intended to exempt real
estate agents from the Independent Contractor Statute,
it would surely have done so in 2010, when it amended
M.G.L. c. 112, ~ 87RR. Instead, the 2010 amendment
merely states that a real estate agent "may, by
agreement, be paid as an outside salesperson on a
commission-only basis." M.G.L. c. 112, ~ 87RR.
Contrary to Defendants-Appellees' arguments, this
amendment has nothing to do with cementing independent
contractor status for real estate agents since there
is no inherent or dispositive link between independent
contractors and commissions. Indeed, many employees
are paid by commissions, and the Massachusetts Wage
Act, M.G.L. c. 149, ~ 148, which applies to payments
to an "employee," specifically covers "commissions."
21

27. See also Weems v. Citigroup Inc., 453 Mass. 147, 151
(2009) (noting that ~ 148 "expressly states that .
commissions that are definitely determined and due and
payable to the employee, are wages within the meaning
of the act"). Thus, while the 2010 amendment may make
clear that a real estate agent may be paid on a
conunission-only basis, it has no bearing on the issue
of whether a real estate agent is an employee or an
independent contractor for purposes of the payment of
wages.
D. HYP~TFiETICAL CONCERNS ABOUT COMPLYING WITH
THE LAW IS NOT A VALID REASON FOR EXEMPTING
SHE RE~,L ESTATE INDUSTRY FROM M.G.L. c. 149,
~ 148.
The Independent Contractor Statute states that it
applies "[f]or purpose of this chapter and chapter
151." M.G.L. c. 149, ~ 148B(a). The private
enforcement mechanism for that statute allows
employees to pursue claims only under the following
sections: 33E, 148, 148A, 148B, 150C, 152, 152A, or
159C. See M.G.L. c. 149, ~ 150. According to the MAR
Amici, applying ~ 1488 in that manner would have a
detrimental impact on the peal estate industry because
it would then be required to comply with the
requirements of Chapter 149. MAR Amici Br. at 14.
22

28. The MAR Amici go on to discuss specifically M.G.L. c.
149, ~~ 47, 52, 100, and 150A. However, none of those
are statutes under which employees are permitted to
bring claims, so they are not relevant to the issues
before this Court.
More significantly though, not one of the so-
called burdens identified by the MAR Amici under the
wage laws is singular to the real estate industry.
These provisions impose obligations, which are at
times difficult to satisfy, on all industries. That
is the point. It is absurd for the real estate
industry to suggest that it should not be held to
these requirements of-the wage laws because compliance
seems difficult.
For example, the MAR Amici cite statutes that
require that employers keep records of their
employees' hours and that they provide breaks at
certain intervals. MAR Amici Br. at 14-15 (citing
M.G.L. c. 149, §~ 47, 52, 100). The MAR Amici
complain that it would be hard to keep real estate
agents' hours because they do a lot of work outside of
the office and that breaks would be challenging
because they could be called on at any time. However,
that is no different from any profession in which
23

29. employees make customer calls, perform delivery
services, or otherwise do their work in numerous
locations and/or are on call for their employer or
clients.
The MAR Amici also argue, somewhat surprisingly,
that real estate companies should be able to take
deductions from their agents' pay without the risk
that those deductions will be deemed to be unlawful
under the Wage Act. MAR Amid Br. at 15-16. But if
real estate agents are employees under ~ 148B (as will
likely be the case as to some real estate companies —
like Defendants-AppEllees in this case — but not
others), then they are subject to protection against
improper deductions from their wages just like any
other employee. If a court determines that, for
example, monthly "desk fees" charged to agent-
employees "operate to require employees to buy their
jobs from employers" and therefore "violate public
policy," Awuah v. Coverall North America, Inc., 460
Mass. 484, 498 (2011), then of course the employer
charging those fees should be held accountable.
Finally, the MAR Amici argue that the minimum
wage laws should not apply to the real estate industry
because they "bluntly contradict[] the fact that real
24

30. estate professionals typically earn their compensation
in the form of commissions MAR Amici Br. at
16. However, as noted above, the wage laws recognize
that employees may be paid by commission and explain
how the minimum wage and overtime provisions are to be
applied to employees paid by commission. See 455 CMR
~ 2.01 (explaining how to calculate regular and
overtime rate for employees paid on "commission
basis"); M.G.L. c. 149, ~ 148 (stating that it applies
"so far as apt, to the payment of commissions when the
amount of such commissions, less allowable or
authorized deductions, has been definitely determined
and has become due and payable to such employee"). It
wi11 be an issue for the trial court to determine the
damages recoverable for Defendants-Appellees' wage law
violations, but their commission payment structure.
certainly does not exclude them from the requirements
of the wage laws.
E. BOSTON PADS IS NOT A TYPICAL REAL ESTATE
COMPANY.
While Defendants-Appellees attempt to
characterize this case as being about the real estate
industry in general, it bears noting that Defendants-
Appellees operate their real estate company in a
25

31. manner that does not resemble the "industry standard"
described by the MAR Amici and elsewhere. The MAR
Amici claim that "real estate industry professionals
occupy a unique sphere of the workforce." MAR Amici
Br. at 4. This is so, they argue, because
"professionals within the real estate industry have
long been associated with an independence-based
approach to their careers" and because they "make
their own hours, determine their own business
productivity, are responsible for their own expenses,
are paid on commission rather than receiving a base
salary, ar~d are responsible for their own taxes." Id.
at 4-5. They go on to explain that "the real estate
industry is a highly individualistic and innovative
business. ." and that real estate professionals
enjoy "latitude in terms of setting their own
schedules and developing their own personal style and
marketing techniques." Id. at 5, 6-7.
This description in the MAR Amici's brief of the
"independent and self-made" real estate professional,
id. at 28, does not match the established facts
related to Defendants-Appellees' real estate agents.
Rather than "mak[ing] their own hours," id. at 5,
Defendants-Appellees require their agents to work
~"

32. specific shifts for a specific number of hours each
month. Append. 50-54, ~~ 29-34.5 Instead of
"determin[ing] their own business productivity," MAR
Amid Br. at 5, Defendants-Appellees discipline agents
who fail to meet the productivity goals they set.
Append. 60-61, 9I9[ 44-45. Rather than being "highly
individualistic" and "developing their own personal
styles and marketing techniques," MAR Amid Br. at 5-
6, Defendants-Appellees' agents must dress a certain
way, answer the phone a certain way, and are even told
by Defendants-Appellees that their clients are not
their own, but instead belong to the company. Append.
44, 64, 9[9I 13, 33; 154-55.
Resources from the website of the National
Association of Realtors further highlight the
difference between Defendants-Appellees and a
traditional independent contractor-based real estate
company. A document entitled "Independent Contractor
Statute - Frequently Asked Questions" contains a list
of "types of activities that should be avoided" by
companies endeavoring to classify their agents as
independent contractors. [Add. 49]. Of the five
5 References to the Joint Appendix in this case are
cited as "Append. [page number]."

33. items on the list, the facts establish that
Defendants-Appellees engage in four:
.Activity to be Avoided Defendants-Appellees
"Requiring the worker to Agents must work
perform the services mandatory shifts, during
during set work hours" which time they must
answer the phone, take
out of the trash, update
faxes, and are prohibited
from going out on
showing. Append. 50-51,
y[9I 29-30. Agents must
also work "front desk"
shifts to perform "warm
calling" (i.e., calling
landlords to obtain
listings), update the
company's database, set
up meetings, and market
properties. Append. 52,
9I 31.
"Requiring the worker to Agents must perform "warm
perform the services at a calling" and other
specific location" activities from the
office during the
mandatory office and
front desk shifts.
Append. 50-52, yI9[ 29-31.
"Making attendance at Agents must regularly
staff meetings mandatory" attend mandatory meetings
with Defendants-
Appellees' management.'
Append. 35, 9I 4; 114.
"Providing training to Agents must extensive
the worker" complete mandatory
training, which includes
60 hours of "front desk"
shifts and time spent
completing 23 "galleries"
(photographic and
videographed tours of
properties). Append. 45-
50, 9I9I 21-28.
Add. 50.

34. Respectfully submitted,
MASSACHUSETTS EMPLOYMENT LAWYERS
ASSOCIATION & THE MASSACHUSETTS
BUILDING TRADES COUNCIL, AFL-CIO,
BY...their_ attorneys.
11~~~~~
Ian 0. Russell
(BBO #673387)
PYLE ROME EHRENBERG PC
2 Liberty Square, 10th Floor
Boston, MA 02109
(617) 367-7200
irussell@pylerome.com
Nicole Horberg Decter
(BBO #658268)
SEGAL ROITMAN, LLP
111 Devonshire Street, 5th Floor
Boston, MA 02109
(617) 742-0208
ndecter@segalroitman.com
DATED: July 31, 2014
30

35. CERTIFICATE OF SERVICE
I hereby certify that on July 31, 2014, two true
and accurate copies of this brief were delivered by
first class mail to:
Hillary Schwab
Brant Casavant
FAIR WORK P.C.
192 South Street, Suite 450
Boston, MA 02111
Robert Kutner
Stephen Perry
Christopher Maffucci
CASNER & EDWARDS LLP
303 Congress Street
Boston, MA 02110
31
Ian 0. Russell

36. CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with
the rules of this Court that pertain to the format and
filing of briefs.
Ian 0. Russell
32

37. ', ADDENDUM TABLE OF CONTENTS
An Advisory from the Attorney General's Fair Labor
Division on M.G.L. c. 149, ~ 148B, 2008/1......Add. 1
Executive Order No. 499 .........................Add. 8
St. 2008, c. 304, ~~ 1-32 ......................Add. 13
House No. 5075, Letter to Senate and
House of Representatives from
Gov. Deval Patrick (Aug. 2008)................Add. 45
National Association of Realtors,
"Independent Contractor Status -
Frequently Asked Questions" ..................Add. 49

38. An Advisoryfrom the Attorney General's Fair Labor Division on
M.G.L.c.149,s.148B
2008/11
The Office ofthe Attorney General(AGO)issues the following Advisory regarding M.G.L,c. 149,s.
1483,the Massachusetts Independent ContractorLaw orthe Massachusetts Misclassification Law(the
"Law"). This Advisory provides guidance with respectto the Attorney General's understanding ofand
i enforcement ofthe Law. This Advisory is not aformal opinion. Opinions ofthe Attorney General are
formaldocuments rendered pursuantto specific statutory authority. M.G.L.e. 12.s.3,6 and 9. The
Advisory is intended to provide guidance only and does not create any rights or remedies.
I. INTRODUCTION
A. The Need for Enforcement
The need for proper classification ofindividuals in the workplace is ofparamount importance to the
Commonwealth.z Entities that misclassify individuals are in many cases committing insurance fraud and
deprive individuals ofthe many protections and benefits,both public and private,that employees enjoy.
Misclassified individuals are often left withoutunemploymentinsurance and workers'compensation
benefits.In addition,misclassified individuals do nothave accessto employer-provided health care and
may be paid reduced wages or cash as wage payments.
Similarly,entities that misclassify individuals deprive the Commonwealth oftaYrevenue thatthe state
would otherwise receivefrom payroll taxes. In addition,as a result ofmisclassification,the
Commonwealth often incurs additional costs,such as providing health care coverage for uninsured
workers. Other potential costs forthe Commonwealth include providing workers'compensation benefits
paid by the Workers'Compensation TrustFund,and unemployment assistance without employer
contribution into the Division ofUnemployment Assistancefund,.among other indirect costs.
Finally,businesses that properly classify employees and follow all ofthe relevant statutes regarding
employment are likely to be at a distinctcompetitive disadvantage when vying forthe same work,
customers or contracts as those businesses that do not play by the rules. Further,by paying the proper
taxes and insurance premiums,businesses following the Law are,in effect,subsidizing those businesses
that do not. Misclassification undermines fair market competition and negatively impacts the business
environmentinthe Commonwealth. The AGO expects businesses to contract only with businesses that
properly classify their workers.
1 This Advisory supersedesthe Attorney General's prior Advisories regarding M.G.L.c. 1~9.s. 14$B,including
"An Advisoryfrom the Attorney General,Amendments to MassachusettsIndependent ContractorLaw,"Advisory
2004/2;and an"Advisoryfrom the Attorney General'sFairLabor and BusinessPractices Division on the Issue of
Employee Versus Independent Contractor," Advisory 94/3.
z The Commissioner ofRevenue is charged with administering the Massachusetts wage withholding laws under
M.G.L.c.6~8,which provides a different definition ofemployee than ii~.C~.L, c. 149,s. 14~~3,for purposes of
Massachusetts income tax withholding. See.T~e,~~artrnc;nt aflZevenare T7R OS-II~ F{fect of~~'e~i~ Fm,~~Tovee
~Jassifzcc~tion under;tilG.L. c. 1=1.9..s. 14813 nn l3ritlalaolclin~ r~f7ax ors ~T'ae•e.s undef• ~17CTI c t'~1i. In addition,a
definition similar but notidentical to M.G.L.c. 149,s. 148B,exists for unemploymentinsurance purposes. NI.Ci.L.
c. 1S1A.s.2. The Massachusetts Workers'Compensation Law also provides a different definition ofemployee.
14~LG:L.c. t52,s.'I(4).
Advisory 2008/1
Add. 1
Page 1 of7

39. B. The History ofthe Law
The proper classification ofemployees haslong been an issue ofgreat concern in the Commonwealth.
Under commonlaw,a number offactors determined the existence ofan employer/employee relationship
based on the totality ofthe relationship. See,e.g., Commonwealth v. Savage,31 Mass.App.Ct.714
(1991). Those factors included the degree ofcontrol;the opportunity for profit and risk ofloss,the
employee's investmentin the business facility,the permanency ofthe relationship,the skill required and
the degree to which the employee's services were integralto the business.
In 1990,Massachusetts enacted the first version ofthe Law. By enacting the Law,the Legislature
established thatnotwithstanding that a working relationship could be considered to be one ofindependent
contractor under common law,the worker may still be deemed in employmentforthe purposes ofthe
Law. Boston Bicycle Cour^ieNS v. DeputyDi~ecto~ ofthe Division ofEmployfnentand Ti^aining,56 Mass.
App.Ct.473,477(2002).
Subsequentto its enactmentin 1990,the Law has undergone several amendments including:Section 214
ofChapter 286 ofthe Acts of1992;Section 165 ofChapter 110 ofthe Acts of1993;Section 12of
Cha~~ter 23~ oftlie Acts ofIt398; and Section26 ofCl~a~ter 193 a[the acts 012004. The 2004
amendment was part oflegislation making broad changes to the laws governing the public construction
industry. However,the Law,including the 2004 amendment,applies more broadly to a wide range of
industries. The 2004 amendmentkeptintact,in large part,the standard for determining whether an
individual is an employee,but made several changesfrom the earlier version ofthe statute. The
amendment deleted the element"or is performed outside ofall places ofthe business ofthe enterprise" as
an alternative factor in prongtwo. In addition,the first element ofprongtwo ofthe Law had read:"such
service is performed ... outside the usual course ofbusinessfor which the service ispegfoamed..." After
the 2004 amendment,the elementreads:"the service is performed outside the usual course ofbusiness of
the employe)°." Finally,the amendmentadded"trade"to the list ofactivities eligible forindependent
contractor statusin prong three.
II. THE LAW
M.G.I,.c. 149,s. 1488,provides athree-parttest which requires-that allthree elements(commonly
referred to as prongs one,two and three orthe A,B,Ctest)must existin order for an individualto be
classified otherthan as an employee. The burden ofproofis on the employer,and the inability ofan
employer to prove any one ofthe prongsis sufficientto conclude thatthe individual in question is an
employee. M.CJ.L,c. 149 s. 14SB(using the term"unless"). See also Sealli v. Citizens I'i~zancial Gror.~n,
2006 WL 1581625,*14(D.Mass.2006);Rainbow Development,LLC v. Com.,Dept. ofIndustrial
Accidents, 2005 WL 3543770,*2(Mass.Sup. Ct.2005).
Courts have had a limited opportunity to interpret M.G.L,,c. I49ts. 148B. In College NewsSeNVice v.
DeparhnentofIndustrialAccidents,21 Mass.L.Rptr.464,2006 WL 2830971,the Superior Court noted
that M.G.L.c. 14},s. 148is almostidenticalto M.G.L.c. 151A,s,2,the statute used by the Division of
UnemploymentAssistance,and therefore relied onthe case law analyzing 1VI.G.L. c.151.s.2. to
interpret ?~1.G.I,. c. 149,s. l~&L. See *4("Ifthe Legislature uses the samelanguage in several provisions
concerning the same subject matter[e.g.,the definition ofan employee in distinctionfrom an independent
contractor],the courts will presume itto have given the language the same meaning in each provision.").
Advisory 200811
Add. 2
Page2of7

40. See also Commonwealth v. Gee°mano,379 Mass.268,275-76(1979). Because prongs one and three of
M.G.1.c. 1~9,s. 1~8B and M.G.L.c. 1~1A,s.2 are nearly identical and because prongtwo ofM.G.L,. c.
149,s. 14sB contains one ofthe two steps ofprong two in M.G.L.c. 151A,s.2,Massachusetts case law
interpreting IvI.G.L. c. 151A,s.2provides a useful guide to interpreting 1!C.G.L. c. 149,s. 14~4B.
A.The Three Prong Test
Prong One:Freedom from Control
The first prong ofM.G.I..c. 149,s, 1488 providesthatthe individual must be"free from control and
direction in connection withthe performance ofthe service,both under his contractforthe performance
ofservice and in fact"in orderforthe individualto be an independent contractor. In Commissioner ofthe
Division ofUnenzploymentAssistance v. Town Taxi ofCape Cod,68 Mass.App.Ct.426,434(2007),the
Court noted in interpreting the nearly identical language ofprong one ofM.G.L.c, 151A,s.2that:
The first part ofthetest examines the degree ofcontrol and direction retained by the
employing entity over the services performed. The burden is upon the employer to
demonstrate thatthe services atissue are performed freefrom its control or direction. The
test is notso narrow as to require that a worker be entirely free from direction and control
from outside forces.
Id.(citations omitted).
The first prong ofthe testincludes a determination ofthe employer's actual control and direction ofthe
- individual. See M.CT.I.,. c. 149,s, l4f~B(using the phrase"in fact"). An employment contract orjob
description indicating that an individual is freefrom supervisory direction or control is insufficient by
itselfto classify an individual as an independent contractor underthe Law.To be free from an employer's
direction and control,a worker's activities and duties should actually be carried out with minimal
instruction.For example,an independent contractor completes thejob using his or her own approach with
little direction and dictates the hours that he or she will work on thejob.
Prong Two:Service Outside the Usual Course ofthe Employer's Business
Prong two ofM.G.I... c. 149,s, l~8I3(a)(2}provides thatthe service the individual performs mustbe
"outside the usual course ofbusiness ofthe employer"in order forthe individualto notbe classified as an
employee. Prior to the 2004 amendment,the employer could alternatively demonstratethatthe work was
performed "outside ofall places ofthe business ofthe enterprise." The Law does not define"usual
course ofbusiness"and Massachusetts courts have had limited opportunities to do so. In AtholDaily
News v. Division ofEmploymentand Training,439 Mass.171,179(2003),the Courtfound that
newspaper carriers were performing the"usual course ofbusiness" ofthe newspaper relying on the
employer's own definition ofits business. In American Zurich v. Dept. ofIndustrialAccidents,2006 WI,
2205085,*4(Mass.Super.2006),JudgePaul Troy noted that"a worker whose services form aregular
and continuing part ofthe employer's business"and"whose method ofoperation is notsuch an
independent business"through which workers'compensation costs can be channeled,"should be found to
be an employee." Id. Yet,"ifthe worker is performing services that are part ofan independent,separate,
and distinct business from that ofthe employer," prong two is notimplicated. Id.
Advisory 2008/1
Add. 3
Page 3 of7

41. Prong Three:IndependentTrade,Occupation,Profession or Business
Prong three provides thatthe individual"is customarily engaged in an independently established trade,
occupation,profession or business ofthe same nature as thatinvolved in the service performed"in order
for the individualto be classified otherthan as an employee. M..Ci.L. c. 1~9,s. ].4$:I~(a)(3}."Under the
third prong,the court is to consider whetherthe service in question could be viewed as an independent
trade or business because the worker is capable ofperforming the service to anyone wishing to avail
themselves ofthe service or,conversely,whether the nature ofthe business compels the worker to depend
- on asingle-employer forthe continuation ofthe services,"-Coverallv.Division ofZlnemployment - - -
Assistance,447 Mass.852,857-58(2006)(interpreting prong three ofM.G.L.c. 151A,s. 2). The court
went on to note in Coverall:
Although the court can consider whether a worker is capable ofperforming the service to anyone
wishing to availthemselves ofthe services,the court may also consider whether the nature ofthe
business compels the worker to depend on a single employer for the continuation ofthe services
[citation omitted]. In this regard,we determine whether the worker is wearing the hatofthe
employee ofthe employing company,or is wearing the hat ofhis own independent enterprise.
Id.
B. Issues Deemed Irrelevant
An employer'sfailure to withhold taxes,contribute to unemploymentcompensation,or provide worker's
compensation is not considered when analyzing whether an employee has been appropriately classified as
an employee. M.G.L,c. 149,s. 1.4~B(b). Hence,an employer's beliefthat a worker should be an
independentcontractor has no relevance in determining whetherthere has been violation ofthe Law.
Similarly,the Law deemsirrelevantthe status ofa worker as a"sole proprietor or partnership,"forthe
purpose ofobtaining worker's compensation insurance. M.C'x:L.c. 1'k9,s. 148B{"c).
C.Violation ofthe Law
M.G.L.c. 1~9,s. 1~8}3(d)provides that an employer violates thestatute when twa acts occur. First,the
employer classifies or treats the individual otherthan as an employee although the worker does not meet
each ofthe criteriainthe three prong test. Second,in receiving servicesfrom the individual,the
employer violates one or more ofthe following laws enumerated inthe Law:
• The wage and hour laws setforth in M.G.L.c. 149.
• The minimum wage law set outin:M:.C.T.I.,. c. 1S1.s. lA,lB,and 1J;45S C:IvLR 2.()1,etseq.
• The overtime law setforth in NI.G.1~.c. 151 s. 1 1A 1B aad 19.
• The law requiring employersto keep true and accurate employee payrollrecords,and tofurnish
the records to the Attorney General upon request as required byIvI.G.Z. c. 1ti1 s. 15.
• Provisions requiring employersto take and pay over withholding ta~Yes on employee wages.
M.Ci.L.c.62B.3
• The worker's compensation provisions punishing knowing misclassification ofan employee.
M.G.I,.c. 152,s. 14.
3 As noted infootnote 2,for purposes ofincome taY withholding,M.{i.L. c. ~2B provides a definition ofemployee
that differsfrom the three prong testin NI.G:L.c. 1~9,s. 148B.
Advisory 2008/1
Add. 4
Page4of7

42. The statute authorizesthe Attorney Generalto impose substantial civil and criminal penalties,and in
certain circumstances,to debar violatorsfrom public works contracts. 1vI.G.I,. c. 149,s.27C(al(31. The
penalties and length ofdebarment depend upon the nature and number ofviolations. M.G.L.c. 1~9,s.
I4~B d also creates liability for both business entities and individuals,including corporate officers,and
those with management authority over affected workers.
...III. ENFORCEMENT GUIDELINES
A. GeneralEnforcement Guidelines
The AGO recognizesthat enforcement guidelines are usefulto employers,entities and individuals who
must determine whether a particular situation or individual has employee status. When enforcing the
Law,the AGO attempts to protect workers,legitimate businesses and the Commonwealth,consistent with
the goals ofthe Law outlined inthe Introduction.
The Law is focused on the misclassification ofindividuals. In the eventthat all individuals performing a
service are classified and legitimately treated as employees ofan entity(paid W-2income,received W-2
taxforms,subjectto withholdingsfor federal and state taxes,covered by workers'compensation
insurance,eligible for unemployment compensation benefits,etc.)and are performing the service as an
employee,then there is no misclassification ofthose workers. Accordingly,in determining whether the
Law has been violated,the initial question is whether an individual or individuals are classified otherthan
an employee. For example,ifpainting company X cannotfinish a paintingjob and hires painting
company Y as asubcontractor to finish the paintingjob,provided that all ofthe individuals performing
the painting are employees ofcompany Y,then the Law does not apply. However,ifpainting company X
hires individuals as independent contractors to finish the paintingjob,then this would be a violation of
prongtwo and a misclassification underthe Law.
The AGO is cognizantthatthere are legitimate independent contractors and business-to-business
relationships in the Commonwealth. These business relationships are importantto the economic
wellbeing ofthe Commonwealth and,provided thatthey are legitimate and fulfill their legal requirements,
they will notbe adversely impacted by enforcement ofthe Law. -The difficulty arises when businesses are
created and maintained in order to avoid the Law. The AGO will enforce the Law against entities that
allow,request or contract with corporate entities such as LLCs or S corporations that existfor the purpose
ofavoiding the Law. In these situations,the AGO will consider,among other factors, whether:the
services ofthe alleged independent contractor are notactually available to entities beyond the contracting
entity,even ifthey purportto be so; whetherthe business ofthe contracting entity is no differentthan the
services performed by the alleged independent contractor; orthe alleged independent contractor is only a
business requested or required to be so by the contracting entity.
In reviewing situations for misclassification,the AGO considers certain factorsto be strong indications of
misclassification that warrantfurther investigation and may resultin enforcement. These include:
• Individuals providing services for an employer that are notreflected onthe employer's business
records;
• Individuals providing services who are paid"offthe books","underthe table",in cash or
provided no documents reflecting payment;
• Insufficient or no workers' compensation coverage exists;
• Individuals providing services are not provided 1099s or W-2s by any entity;
Advisory 2008/1
Add. 5
Page 5 of7

43. • The contracting entity provides equipment,tools and supplies to individuals orrequires the
purchase ofsuch materials directly
from
the contracting entity;and
• Alleged independentcontractors do notpay income taxes or employer contributions to the
Division ofUnemployment Assistance.
Since it is notfeasible to address in this Advisory every situation thatcould occur and since each case
involves its own set offacts,itshould be recognized that each potential enforcement action shall be
reviewed by the AGO on a case-by-case basis,consistent with the Law.
B. Prong Two Guidelines
Dueto the nature ofprongtwo and the lack ofjudicial precedent,the AGO recognizes the complexitythat
prongtwo presents and the concerns regarding legitimate independent contractors,particularly among
certain segments ofthe workforce.
As discussed above,the AGO emphasizesthatthe initial question in determining whetherthe Law has
been violated is whether an individual or individuals are classified otherthan as an employee. Only when
an individual or.individuals are classified otherthan as an employee willthere be a determination of
whether any ofthe prongs — including the complex prong two —are violated.
InAtholDaily News,the Court advised that no prong should be read so broadly as to renderthe other
factors ofthe testsuperfluous. 439 Mass.at 180. Thus,prongtwo should not be construed to include all
aspects ofabusiness such that prongs one and three become unnecessary.
In its enforcement actions,the AGO will consider whether the service the individualis performing is
necessary to the business ofthe employing unit or merely incidentalin determining whether the
individual may be properly classified as other than an employee under prong two.
Some examples ofhow the Attorney General will apply prong two4:
• A drywall company classifies an individual who is installing drywall as an independent
contractor. This would be aviolation ofprongtwo becausethe individual installing the drywall
is performing an essential part ofthe employer's business.
• A company inthe business ofproviding motor vehicle appraisals classifies an individual
appraiser as an independentcontractor. This would be aviolation ofprong two because the
appraiser is performing an essential part ofthe appraisal company's business.
• An accounting firm hires an individualto move office furniture. Prongtwo is not applicable
(although prongs one andthree may be)because the moving offurniture is incidental and not
necessary to the accounting firm's business.
4In interpretingthe Illinois independent contractorlaw,the Supreme CourtofIllinois noted in Cmpetland U.S.A.,
Inc. v.ILDept. ofEmploymentSecui°ity,201 I11.2d 351,386-88(2002):
The washing ofwindows or mowing ofgrass for a business is incidental. Butwhen one is in the
business ofselling a product,sales calls made by sales representatives are in the usual course of
business because sales calls are necessary. When one is in the business ofdispatching limousines,
the services ofchauffeurs are provided in the usual course ofbusiness because the act ofdriving is
necessary to the business.
Although theIllinois statute is notthe same as the Massachusetts statute,the court's analysis is usefulfor
guidance on how the Attorney General will undertake prongtwo enforcement.
Advisory 2008/1
•..
Page6of7

44. N.-CONCLUSION
Asthis Advisory reflects,the AGO will carry outits enforcementresponsibilitiesto serve the goals ofthe
Law as articulated inthe Introduction. The Law has been passed and amended over timeto address
serious abuses by various entities,and the AGO's goal is to prevent and remedy those practices without
disrupting legitimate business activity.
Advisory 2008/1
Add. 7
Page 7of7

45. THE COMMONWEALTH OF MASSACHUSETTS
;, EXECUTIVE DEPARTMENT
w
~ d STATE HOUSE • BOSTON 02133
'` (617) 726-4000
p~ e
~~M s~~v
OEVAL L PATRICK
GOVFAN~R
TIMOTHY P. MURRAY
LIEUTENANTGOVERNOR
.~ .
By His Excellency
DEVAL L. PATRICPC
GOVERNOR
EXECU'T'IVE ORDER NO.499
Establishing a Joint Enforcement Task Force on the
Underground Economy and Employee Misclassification
WHEREAS,the health ofthe Commonwealth's economy,its
workers and its businesses is harmed by the existence of an illegal
underground economy in which individuals and businesses conceal
their activitiesfrom government licensing, regulatory and taxing
authorities;
WHEREAS,individuals and businesses that operate in the
underground economy do so in violation of labor, employment,tax,
insurance and occupational safety laws, by failing to pay required
wages,carry workers'compensa~l:ion insurance,comply with health,
safety and licensing requirements,or pay income taxes and payroll
taxes thatfund unemployment insurance,disability insurance, and
Medicare and Social Security benefits;
WHEREAS,certain businesses also improperly classify their
employees as"independent contractors"(referred to as"employee
misclassification")and hire undocumented workers to avoid
compliance with labor, erriployment,tax,insurance and regulatory
requirements;
WHEREAS,'the underground economy and,in particular,the
practice of employee misclassification:(1)exploits vulnerable workers
and deprives them of legal benefits and protections;{2)gives
Add. 8

46. unlawful businesses an unfair competitive advantage over lawful
businesses by illegally driving,down violators'taxes,wages,and
other overhead costs;(3)defrauds the government of substantial tax
revenues;and(4)harms consumers who suffer atthe hands of
unlicensed businesses thatfail to maintain minimum levels of skills
and knowledge;
WHEREAS,a recentstudy based on audits of Massachusetts
unemployment recordsfor construction employers between 2002 and
2005found that up to 14% ofthe employees covered by the ai.~dits
were estimated to have been misclassified by employers;
WHEREAS,efforts to combat the underground economy and
employee misclassification historically have been divided among
various agencies, diminishing ~khe timeliness,efFiciency and
effectiveness ofsuch efforts; and
WHEREAS,the creation ofijoint task forces has proven to be
an effecfiive mechanism for enhancing interagency cooperation,
information sharing,and the prosecution of violators;
NOW,THEREFORE,I, Deva{ L. Patrick, Governor ofthe
Commonwealth of Massachusetts, by virEue ofthe authority vested in
me by the Constitution,Part2,c.2,§ I, Art. I, do hereby order as
follows:
Section 1. There is hereby established the Joint Enforcement
Task Force on fihe Underground Economy and Employee
Misclassification(the"Task Force").
Section 2. The Task Force shall consist ofthe following
members or their designees: the Director of Labor,the
Commissioner of Revenue,'the Commissioner ofthe Department of
Industrial Accidents,the Chiefofthe Attorney General's Fair Labar
Division,the Commissioner ofthe Division of Occupational Safety,
the Commissioner ofthe Department of Public Safety,the director of
the Division of Professional Licensure,the Director of Apprenticeship
Training and the Director ofthe Division of Unemployment
Assistance. The Director of Labor shall chair the Task Force.
2
Add. 9

47. Section 3. The Task Force shall coordinate joint efforts to
combat the underground economy and employee rriisclassification,
including efforts to:(a)foster compliance with the law by educating
business ownersand employees about applicable requirements.;._
(b)conductjoint,targeted inves~tigai;ions and enforcement actions
against violators;(c)protect the health,safety and benefit rights of
workers;and(d)restore competitive equalityfor law-abiding
businesses.
In fulfilling its mission,the Task Force shall:
a. Facilitate timely information sharing between and among
Task.Farce members,including through the
establishment of protocols by which participating
agencies will advise or refer to other agencies matters of
potential investigative interest;
b. Identify those industries and sectors where the
underground economy and employee misclassification
are most prevalent and target Task Force members'
investigative and enforcement resources againstthose
sectors,including through the formation ofjoint
investigative and enfiorcement teams;
c. Assess existing investigative and enforcement methods,
both in Massachusetts and~in otherjurisdictions, and
develop and recommend strategies to improve those
methods;
d. Encourage businesses and individuals to identify violators
by soliciting information from the public,facilitating the
filing ofcomplaints,and enhancing the available
mechanisms by which workers can report suspected
vio{ations;
e. Solicit the cooperation and participation of district
attorneys and other relevant enforcement agencies,
including the Insurance Fraud Bureau,and establish
proceduresfor referring cases to prosecuting authorities
as appropriate;
Add. 10

48. f. Work cooperatively with employers,labor,and community
groups to diminish the.size ofthe underground economy
and reduce the number ofemployee misclassifications by,
among other means,disseminating educational materials
regarding the applicable laws,including the legal
distinctions between independent contractors and
employees,and increasing public awareness ofthe harm
caused by the underground economy and employee
misclassification;
g. Work cooperatively with federal,commonwealth,and
local social services agencies to provide assistance to
vulnerable populations that have been exploited by the
underground economy and employee misclassification,
including but not limited to immigrant workers;
h. Identify potential regulatory or statutory changes that
would strengthen enforcement efforts, including any
changes needed to resolve existing legal ambiguities or
inconsistencies,as well as potential legal proceduresfor
facilitating individual enforcement efforts; and
i. Consult with representatives of business and organized
labor, members ofthe General Court, community groups
and other agencies concerning the activities ofthe Task
Force and its members and ways of improving its
effectiveness,including consideration of whetherto
establish an advisory panel under the secretary of Iabor
and workforce development.
Section 4. The Task Force shat( transmit an annual report to
the Governor summarizing tl~e Task Force's activities during the
preceding year. The report shall, without limitation: (a)describe the
Task Force's efforts and accomplishments during the year;
(b)identify any admiriis~trative or legal barriers impeding'the more
effective operation ofthe Task Force,including any barriers to
information sharing orjoint action; (c)propose, after consultation with
representatives of business and organized labor, members ofthe
legislature and other agencies,appropriate administrative,legislative,
Add. 11

49. or regulatory changes to strengthen the Task Force's operations and
enforcement efforts and reduce or eliminate any barriers to those
efForts; and(d)identify successful preventative mechanismsfor
..reducing the.extent of the underground economy and employee
misclassification,thereby reducing the need for greater enforcement.
The Task Force also shall take appropriate steps to publicize its
activities.
Section 5. To the extent permitted by law,every agency witriin
the Executive Branch shall make all reasonable efforts to cooperate
with the Task Force and to furnish such information and assistance
as the Task Force reasonably deems necessary to accomplish its
purposes.
Section 6. Nothing in this Executive Order shall be construed
to require aci:ion inconsistent with any applicable state orfederal law.
Section 7. This Executive Order shall coritinuz in effect until
amended,superseded,or revoked by s~sbsequent Executive Order.
~, ~ ,.~ ._~i.
Given at the Exe utive Chamber in
Boston 'this ~,~~ay of March in the year
of our Lord two thousand and eight and
ofthe Independence ofthe United
States,two hun ~ 'rt -two.
M1
Q~
`~ DEVAL L.PATRICK
GOVERNOR
Commonwealth of Massachusetts
WILLIAM FRANCIS GALVIN
Secretary ofthe Commonwealth
GOD SAVE THE COMMONWEALTH OF MASSACHUSETTS
5
Add. 12

50. AG~.S
24}f~$
Ch~ptet` 3Q4 AN ACT PROVIDING FOR CAPITAL FACILITY REPAIRS AND IMPP.OVEMEI4TS FQR THE
COf~1MONWEALTH.
tNhereas,The deferred operation ofthis actwould tend fits defeat its purpose,which is to pravide
farthwith fr~rthe irt~medi~te capital improvem~r~t needs ofthe comm~r~wealth,therefore i~ is hereby
de~3~recl to be are ee~r~ergencylaw;necessaryfc~rthe irr~mediate preservation ofthy: public
convenience.
Be if~nac~ed bythe Sena~~ and Nouse cifRepresentativesirr General Cocrrt~sseartbled,and by
the authorityofthe same asfoilovis:
SECTI~ht 1.To provide fc~r a program ofcapitalfacility repairs ar~d improvements tc~ prntect art
improve fihe capitalfacilities ofithe carnmonwealth and for a program ofcapital asset~cquisitic~ns
for genera!gaver~mentoperations,the sumssitfiorfih in sectir~ns2A,2B,2C and 2D,inclusive,for
the several purposes and subjecttc~ fih~ conditions specified in this actare hereby made available,
subjectfo the Paws regulating the disbursementof publicfunds,which sumsshall be in addition to
any other amounts previousEyappropriated forthese purposes.
NC.~ S~CTI~td Z.
~;
EXECUTIVE OFFICE FOR ADNfBNISTRAT~4N ACED FINANCE
Office ofthe Secretary
~100-7400..Forthe recapitalization ofthe Massachusetts Community Development Finance
Garporation esfablish~d pursuantto s~ctic~n 2ofchapter40F ofthe Genera[Laws;prz~videc~,that
the carporation shat!prepare a5-yearsfirategic operatic~r~s plan which shah include,buff not be
limited to,{i)identification ofthe financial resources required to meetthe missian and on-going
lending operations ofthe corporatian;(ii}a plan to reduce or elim€Hate the need ~c~r public subsidies
to meetthe missian ~ffihe carporafiion;ar~d (iii}identificatie~n ofthe corporate rel~tiar~ship tc~ and
purpose cifanyaffiliated or subsidiaryco€~parations,including a description of hawthe affiliation or
subsidiaryrelationship is cansistentwith the objective offu[~Iling the rr~issian ofthe corparationa and
provided further,thatthe corporation sha!!submitthe strategic operations plan to the executive
office faradministration and finance and fo the hau~e and senate committees Qr~ ways and means
Hatlaterthan December3~,2008$10,000,0(}0
Add. 13

51. 1 ~00-92Q0..For costs associated with the purchase and procurementofequipmentfar general
governmentoperations.......................$25Q,~O.Q,OOQ
~:1'~ TI 117~~Cil~~F7~:1~~.~#C~I4'y,1~~1•/:~~t~y !1lI~~~~
X000-0700..Fnrequipmentfnr the depar~menfofcorrection and other agencies wifihin the........
executive t~fFce of publicsafetyaid securityincluding, but nofilimited t~, medical equipment,
securifiJequipmentand ~ommunieations equipment.............................................$25,0OO,OClQ
8Q04-2020..Fc~rthe design,canstructi~n arrd implementation ofthe departmentofst~fe police
mobile data network and are automated rr~otorvehicle ciliation system,including the use ofi"MDT"
devices............ p15,C?OQ,000
s~aa-~o~~..Forthe rep6ac~menf o~stag police cruisers; provided,thatthe state police shall
develap a 5-year plan which specifies the number ofvehicles to be replaced eachfiscal year over a
5-year perifld~ provided fiurther,thatthe departmentshall report annuallyto the house and senate
committees an ways and means the number ofvehicles and condition ofeach vehicEe replaced
underthis plan; provided further,thatthe r~pa€~ shalE a9so include, but not be limited ta,the tats(
amountspentin eachfiscal year;~~d provided further,thatthefrs~ reportshall be Fled byJanuary
1!* ~~1 i1 11
8100-90 0.,farthe purchase cifstate police helicopters; provided,thatthe state police shall trade
in 1 helicopterfrcam the currentinventaryofhelicopters each time a repfacemenfi medium lift
helicopteris purchased,and the value ofthe trade-in shall be used to reduce fihe negotiated
purchase price ofthe replacement helicopter.....,..$25,000,000
EXECUTNE{~FF[CE FC~R ADMINISTRATION AND FINANCE
lnformatian and Technology Division
1790-30fl0..for casts assaciate with planning and studies,the preparation of plans and
specifications, purchase ar~d procurementofinformation technoEQgy-related equipmentand r~~a~~d
projects; provided,thatanyfederal reie~abursementreceived by~ state agencyin connectiar~ with
projectsfunded from phis item may bs retained byfihe state agencyand expended for the purposes
ofthe project,withoutfurther ~ppropri~ti4n,in addition to tf~e ame~un~s appropriated in this item,
provided fiurther,thatanystag agencyreceiving federal reimbursementsfar a projectfunded from
this items ~flfle a quarkerly report with fihe executive office ~c~r administration and finance,the
house and senate committees on ways and rrieans,and thejointcommiftee an bonding,ca{aital
e~enditures,and state assets that details, by projecfi,an annual estimate ofanticipated federal
reimbursementto be received can behalfcifand e;ended fortl~e praj~ct,as will as year-to-date
actin(federal reimbursementreceived and year-to-date ~ctu~l expenditures ofthe reimbursement,
Add. 14

52. by project;and provided furtherth~t$1,800,400 shelf be expended far informati€~n technalogy
systems upgrades afithe appeals courtand the supremejudicial court.........................$451,SOO,OOQ
SE~TIOt~ 2C.
EXECI~TIV~ OFFICE F4RADM~N3STPATION AND FINANCE.
C7ffice ofthe Secretary
1100-8020..Forthe Massachusetts flppc~rtunity Refrcatic~n and Exans'sc~r~ Jobs Capita(Program
related fie site remec~iation, preparatian and ancillaryinfrastructure imprav~ment projects; provided,
thatthe local executive government bodyand a fflr-profit entityinvolved in the projectshalljointly
summita requestforfunding to the secretaryofhousing as~d economicdevelopmentwhich shall
include sufFcientdocumenfation including, but netlimited to,a prajecf plan with specific gaal~ and
objectives fihafifiulfy documentsfife prflposed projectand demonstrates thatthe businesses
assaciated with the projectwiil generate subs#antial salesfrom outside the commonwealth and will
resultire the creation ofa netincrease ofatleast100 new permanentfull-timejobs in Massachuse'~s
~~vithin 24 months after receipto~a grantand commitsthatthejabsire to be mair~tain~d for atleast
a 5-year period ar~d thejabs da notreplace existingjobs elsewhere in fihe cammonwealth;and
pra~ided further,thattwig annu~liythe secretaryshall issue a ~nrritten reportto the clerk ofthe hQUSe
ofrepresentatives and the clerk ofthe senate,who smallforward the same to the chairs ofthe pause
artd senate commii~ees ran ways and means and the chairs ofthejointcommitt~~ on economic
develapmentand emerging technologies which shall include detailed descriptions ofany
infrastructure €mprc~vement projectsfunded underthis program,an accoun#ing ofthe variance,if
any,be~vueen praposed jobs and actuaE creation afjobs,the currentand estimated amountof
taxable income.expected from each projectand alEfiunds expended fc~r this purpose; provided
further,thafi nestless than $25,000,000 shall be granted to gafieway cities and cities with more than
40,000 inhabitants butfewerthan 175,OOQ inhabitan#s where:{~}fhe unemployment rate is atleast
1.5 percent higherthanfihe statewide average;or(2}the median income oftie cifiy is80 per cent
orI~ss ofthe state median inccame;and provided furkl~er,that nr~tless than $~5,000,040 s9~a11 be
expended on projects in cities in which bofih crifieria are applicable.................$100,000,000
0640-0300..forthe Massachusetts Cult~raf Faciiifiies Fund established in secfian42ofchapter
23G ofthe General Lawsfarthe acquisition,design,consfiructic~n,repair,renovation,rehabifi#atiar~
ar c~fiher capitalimprovementardeferred maintenance tQ a culturallac€(ity$ 0,~J4Q,040
Division t~fCapitalA.~sef Marragerrrer~tar~d IUl~inte~►ance
The Governor disapproved certain I~nguage and re uced,fc~llowing ifem
~102-2Qt~8..for cos#s associated with planning and studies,dispositions,acquisition ofland and
bu'sidings and interests(herein by purchase,6ease for a term,including any e>:tensir~ns, notto
exceed 50 years,giftor othertransfers,or byeminentdcamain underchapter79 ofthe General
Laws,forthe pre{~ar~tion of plans and specifications,repairs,construction,renc~v~tior~s,
Add. 15

53. imprc~ver~ents,asset managementand demolition,dispasition and ~eme~iation ofstate-owned and
former cauntyfacilities end grounds and forcosts associated with repair and maintenance of
buildings anc~ building systems and equipmentatvariousfacilities cifthe commonwealth;provided,
thafiai3 maintenance and repair workfunded irr this item shalt be listed in t~,e capita[asst
managementinformation system administered bythe divisian cifcapital asset managementand
mainter~anc~;, provided further;that,where appropriate,the coraimissioner ofcapital asset
managementand rr►aintenance maytransferfunds in acc~rdar~ce with the delegation Qf project
cnntr~l and supervision process undersectia 40B ofchapter7oftha General Laws;provided
further,that~'~ands sa transferred shelf be distrEbuted based gn the severity cifthe need thatthe repair
will address end c~fh~rcriteria developed bythe divisian,ire consultatian with the secretaryof
~dministratic~n end fnance;prnvided further,thatoasts p~y~ble from this item shall inc3ude, butnot
b~ limited ta,fihe casts ~fengineering and other services essenfiia(fio these projects rendered by
division t~fcapifi~!asset managementand maintenance employees or byconsu4tants;
9 7
prr~vided further,thatamounts
emended for division empEayees mayinclude the salaryand s~9ary~re[~ted eayaenses flfthese
employees to the extentghatthey work on or in supportofthese projects; pravided furtherthat, upan
certification bythe cammissic~ner c~fieducation pursuantto sec~ian4ofchapter463ofthe acts cif
2004,$60,QOO,OOQ sh~l( be expended for costs associated with the construction ofthe Essex Narth
Shore Agricultural and T~chnic~E Schaal in thefawn cif Danvers;provided further,that notless than
$24,00~,OOQ sha[9 be expended Fc~rthe constr~ctian ofthe Massachusetts Psyci~iatric Respite!in
fih~ cityofWarcester;and provided furtE~~r,thafi ~1,~0O,OOQ shall b~ expended far infrastructure
improvements end maintenance equipmentatfihe MurphySkating Rink in the South_ Bostan section
ofthe cityofBoston...............................................~ $460,000,000
The governor d~sappraved c~rEain language and reduced following ifiem
11fl0-3001..Fara grant program to cities and townsforfihe purpose of providing funding fcarthe
repair,renovation or canstructian of municipalf~ci6ities ar €nfrastructure or ofanycul~ura(,saciaf,
recr~atior~al ter otherfacilities serving ~ municipal purpn~e,including these owned or operated by
nc~nprofi'rt orgni~tions,fiechnc~logY upgrades ar~d purcl~~se ofequipment,under rules adopted by
the executive c~fFce far administration and finance based upon the following criteria:an assesst~ner~t
offiscal and budgetary canstraintsfacing the rnur~icipality; an analysis ofthe municip~li~y's
proposed budgetand ~n~ncing ofthe repair,re ov~tian,or cc~r~struction project;the municipalifiy's
need farfihe prc~~ect;the b n fifis try the municipalitythat will resui~from fihe project;and an overall
evaluation ofthe merits ofthe grant propc~saE; provided,thatthe execufiive mice ofadminisfiratian
and finance mayexpend not more than 1 per centcifthe total amountavailablefarthe castof
administering phis program;provided further,fh~t notfess than $~OO,OOQ shall be expended farthe
consfiruction Qfa concrete ~o~anda~€onfor refrigerant pipes afifihe Bourne Ice Rink; provided further,
that notless than 1,0O ,OQO shall be expended farthe lVlunicipal Stadium safiety p~-c~j~ct; provided
further,that natless than ~1,200,OOC~ shall bee ended fc~r improvements to the Nevvburyport
Add. 16

54. senior centerin Newburyport,provided further,that notless than $7,000,000sha[( be expended far
improvements to the Haverhill Stadium in Haverhill; provided fiurther,that notlessthan X100,000
shall be expended far renovations ofLakevillefawn hall; provided further,That notless than
$~X0,400 steal! be expended fior renov~fiions ofiFreetcawn town half; provided further,that nc~tless
than $fiOO,OOQ shall be expended for renovations of Middleborough tcswn teal[; pr~avided further,that
notless thin $75, 00sh~l1 be expended for canstructic~n of~ parking lotatthe Cauncil on Aging in
Middl~barough provided further,thaf notless than $3,50(3,000 shall be expended for wafi~rfront
develcapm~ntin Beverly, provided further,that nc~tlessthan 10,fl00,000 sell ~e expended for
clean up ofthef~rrr~er Belchertown state schaal property; provided further,that natless than
$4,0OO,OUQ shall k~e expended for restoration ofthe Loew's Pali PaEace Theatre; pravided further,
that nc~t less than$5 0,000 shall be expended far repairs tQ the H~mi(ton Centerin Newton Lower
Falls; provided further,that nc~t 3ess than$30,000,000 shall be expended for repair Qr replacement
ofv~ater pipes faceted understate highwayroutes 1 ar~d 39 in Saugus and thatsaid appropriation
sha11 ~Iso be used for reimbursementto the town ofSaugusforfhe costo~ breaks to said pies
located undersaid sfiate highways; provided further,that notless than$2,00 ,000 shall be
expended firthe Hope House in the cityofBastan; provided further,that net[essthan $2,C?Q0,000
shal6 be expended fortyre Watertown Boys'and Gir€s' Club,(nc.; prQVided furtherthat netless than
$'1,500,OOfl shall be expended for repairing the irrigation system atthe Leo J. Martin golfcourse in
the city ofEaston; provided further,that ratless than$250,000 shelf be expended forthe Amesbury
Carriage Museum in the cityofAmesbury;provided further,that notlessfih~n$1,00 ,000 in
matching funds steal! be expended forthe construction ofa new seniorcitizen center in the tawn of
Ca~fon;pravided further,that net[ess than$250,000 shah[ be spentan renovations and
imprr~vemer~ts to the Qalton Town H~if; provided further,that nofiless than$2,50 ,000 shall be
expended fc~rfihe renovafiion and restorafiion ofthe Everett Nall Theatre in fihe Hyde Park secfiion csf
Briton; provided further,that notless than $40,000shall be expended forthe construe#ion and
maint~~ance oftrails in the Tawn of Hearne;provided further,fhat raof{ess than$250,OU0 steal[ be
expended fc~r rehabil~fiation and renovafiions to the Gardner Seniar Center; prr~vided fiur~h~r,that neat
less than$5Q0,00 steal! be expended forthe Tawn ofAshland,to create a quietzone a~the grade
level crossing on CherryStrutin Ashland,to improve economic devefapmer~tand public safetyin
the Town ofAshland; pravided further,thaf netless than $800,000 shall be expended forthe
reconstruction ofRa to 133from ChestnutStreetfio Carlfion Drive and Routs 97from the Grovelan~
line t~ Moulton Streetinfhe Tawn ofGeorgetown;provided further,that notless thae~ $3QO,OOC~ shall
be expended for BaiBey Lane Bridge Replacementand Road 9rs~provements ire the Town of
Gearge~ow~;provided further,thafi notless than X3,000,000 shall be expended to the te~wn of
Burlingtonfarfihe design,construction,and impl ~ner~t tio~ cifa capital infrastructure improvement
projectadj~cen~to Route 3and MiddlesexTum ike in the town o~ Burlington; pravided fiurt er,thafi
netless fihan $~C~0,000 shalt be expended far infrastructure improvements related to pedestrian
safety,vehicle access and parking fnr the proposed Andover Youth Centerin the Town ofAndover;
prc~~i ed furkher,that netleis than 100,QOQ sh~11 be expended fr~r renovations ofCharlton Town
Hall; provided further,that notless than $50,000 shall be expended for renovations offast
Braokfie(d Tawn Hall; pravided further,that notless th~r~ $250,0 0 steal[ be emended to estabEish a
Add. 17

55. pifat pragr~m forimplementing automatic meter-reading technc~[ogy,to be administered jointly by
the Braintree ~le~tric Light Departmentand the Braintree Waterand Sewer Department; provided
further,fhafi notless than $500,OOQ shat€ be expended forimprovementsfio the Water and Sewer
building in fibs fiovvn of~rainfir~e; provided further,that notI~ss than $20x,000 shall be expended fio
the ~anie(s ~armste~d Faundation; provided further,teat notless than ~150,0~0shat{ be e~aended
forthe construction ofa new S~[tShed in the city of Fitchburg; provided further,that notless than
$250,000 ~ha91 be ~xpend~d for upgrades tca the el~;vator atthe Council on Aging Center ~n
BiRlerica; provided f~~rfiher,that notless than 25C1,Q00 shill be expended oi~ rer~ov~tions fc~rthe
A#hoi Senir~r Center;provided further,that not €ess than $1,000,004 be expended forthe resto~atiar~
ofthe Lynch Park Carriage House in the city cif Bev~r6y; provided further,that notless than
$25x,000 shat[ be expended for ADA compli~t~ce atthe tovun hal[ in Egremont;provided fur~h~r,that
notless thin $X}0,000 shall ~e expended on the Beebe WoodslNighfield Qrive Walking Path ~~d
parking facility in the Town of~almc~uth; provided further,that notlessthan $20C3,OOQ shall be
expended of~ the design,ren~vatio~ and rec~nstrt~ction ofthe SurfDrive Bath House and the t~€d
Silver Beach Bath House ire fibs Tawn ofFalrncstath; provided ~ur~her,that nc~tless fihar~$Z,O~lO,QOQ
shill be expe€~ded forthe Town ofrramingh~m to construct~ C3owntown Parking Garage in close
pra~t~ityto Framingham Memorial Bu6lding,serving TQV~n Uovernrnent,commercial,and related
regian~l Public Service and PublicSafetyopeeatians;provided furkher,fh~t notless than
$1,Q00,000 shall be expended for capital impravernents to the Bridgewatersenior center in the
town afiBridgewater; provided further,thafi$75 ,{300 shall be expended fiorthe Loring Skating
Arena in the tawn 4fFramingham;provided further,that notleis than $1,000,000shall be expended
forthe Presentation School in Brighton; provided further,that notlessthan $2,00O,OOU shall be
expended o~°a Fenvvay Community Health Center; provided further,t~a~ nQt €ess than$60 ,000 shall
be expended for Prc~jecfi PEace in Boston; provided further,that notless than $250,000 shill be
e~rended farc~mmunicat€ons cansolesforthe Braintree palice c~eparfinent; provided further,that
notless than $250,000 Shall be expended fiatcreation and deve[c~pmentofa seniar center in
Canfian; provided fuck er,that nofiless than $~,OOO,QQO shalt be expended for design end
consfiruction pfa performing arts centerin Milton; provided further,that nofilessthan $1,St?O,OOQ
shall be emended for design and constructian ofa senior center in East Bridgewater; provided
further,that notless th~rr $5,000,000 shall be expended for design and canstructian ofa department
of public works aper~fiions cenfier ire East Bric~gew ter; provided further,fihat nofiless than
$'~O,OOQ,000 shall b~ expended far a municipal maintenance facilityin Canton;provided further,that
natless than $100,000 shall be expended for repairs to the Chesterfawn hale; provided further,that
notless than 5U0,000shall be expended forrenc~vati~ns to the nld tQUVr~ half in Easthampt~r~,
provided further,that natless than $24,000,000 shill b expended fc~r the Westfield i termc~da[ar~d
downtown revitalization inifi[ative; provided further,that natless than $SQO,Q00 shall be expe~cied for
c~tC CQtIC~I~ltJC11ClC~ ~t CITY ~6c'~II f~l LyCiCI; provided further,that nc~~ less fi an$4,917,000 shall be e~aended
fnr waterfrc~n~ developmentin Lynn; provided further,that nitless than $2,253,395 shall be
expended for reconstruction cifthe Ward bath ~c~use in Lynn;provided further,that notless than
$1,QOO,fl00 shall be expended forimprovements tt~ the Grand Array ofthe Republic build`€rig in
Lynn; provided further,that no less thin $350;000 shall e e;.~ended for design end renovation of
Add. 18

56. Topsfield town hail; provided #urther,that$500,OQ0 shalE be expended forcapital impravements to
the Trailside museum;provided further,that notless than $200,000shall be emended for
Watertown Landing; provided further,thatthe sum of$2£~f~,000 sha16 be made available on a
matching basis wifih the townforthe e~ter~sion and repair ofsidewalks on Rote#1 ~3in the fawn of
West Newbury;pr~u~ded farther,that nc~tless thin$100,000 be expended fc~rirr~pravernents to the
Cie ar~mentofPubl€c W~arks Maintenance Facilities i~ the cityofUVestSpring~ieid; provided further,
~h~t gotlessthin $~,Q00,000 sha€I be expended for the consfructic~n ofa seniar cenfierin the TQwr~
ofVOfestmir~stee; pr€~vi ed f~€r~h~r,that notless than $1,QOO,OflO be expended fio the Departmentof
Public Works located ire the Tov~n cifWeymouth;provided further,that$5Q0,000 sha[I b~ expended
fQr repairs anei renavationsto the ~anbc~rn House Culfiura!Facilityin the Town of Winchester;
provided further,thatX100,000 shall be expended forthe Veterans memorial Hc~r~or Roll in the Town
ofWincFtester, ravided further,that$3,0OO,OQ4 shall ~e expended farfibs design and consfirucfiion
c~~a parking ~ar~ge in the Town refiNinchester; provided further,that nc~tless than $1,000,000 shall
be ex ors ed for capital improvements to the V~ir~throp senior centerin the town cfWinthrop;
p~c~~ided further,that nofi less than $176,OC}0 shall be expended fc~r developmentgrants to the
1Naters Farm living Nistc~ry IV9useu~r~; prouided furkher,that notless than $240,000 shat!be
~xpe~ded ficar rer~ovat~ons ~t.the town ha(!in the town ofSpencer; pravided further,that nc~tless than
$30,Q00sha{I ~e exp~r~ded forthe resfaration ofthe ~istaric North Purchase streetschool hose;
provided further ghat n€~filess than ~25,OOQ shall be expended ft~r ~ comprehensive studyto develop
sign end gr~p~icstandardsfic~rthe Plymouth Historic District; provided further,that notlessthan
$~S,G~~O sha61 be expended forlandscape design and permi#ting for r~E~abif€cation cifthe Training
Green in Plymouth; provided further,that notless th~r~$3,500,000 shat!be e~~nded for design and
consfirucfiian proJect~ recommended bythe Plymouth Public space Action Plan(2007);provided
fu~k~~r,that n~filess than $250,000 shall be expended fior dag recreation space atRonan park in the
~archestersectian ~fthe cityofBoston;provided further,that notless thin $~OO,OQO shall be
expended for nevvfacilities and improvemenfis atAlmont park in the Matt~pan ~ecfiian cifthe cityof
Bas~~an; provided further,that nc~t1~ss than$104,Q00 shall be expended for newfacilities and
improvements atWalker Pfaygral~nd afi Norfi~~k Park.in the Mattapan secfiion ofthe cityof Bostcar~;
provided further,that notless than $4,OU0,~(l0 shall be emended fordesign and constructian
projects an VI/ terStrutas recommended bythe Plymouth Public Space Action Plan(2007);
provided further,fihat notless than X155,000 sl~al9 be expended ficar streetlighfis in the firawn of
~oume;provided ft~rkher,that notless than X3,200,000 shall be expended for renc~vatians atthe
Falmouth Town Library; provided farther,that notless than$300,000shall be expended fortie
historic restoraiian offihe Roc(~land Memarial Library; prouicied further,that rentless than $15,000
shall be expended fortechnology upgrades ~tthe P[yme~uth Pubic Library; provided farther,thafi n~fi
less than$80,000 shalt be ~xper~ded fc~rthe ~vlodernizafiion ofthe Plymouth Fire Prever~tian Bureau;
provided further,that nc~t less than $100,000 shalt be axpended fiarfibs establishmentofthe
Plymc~ufh Historical Records ManagementProgram; provided further,that notless than$500,0 0
shalt e expended fc~rthe restoration ofthe histt~ric Blanchard streetschov~ house,ar~d for ACtA
improvements atthe town hall,senior center,and libraryin the town of Uxbridge;- ,~~^°'{_,°~"-,
r
Add. 19

57. provided further,that not
less than ~30Q,000 sf~a(I be e~er~ded for ADA compliance and entry wayimpravements atthe
town hal!in Charlton; provided fu~her,thatgotless #han X665,735 shall be expended ~c~r° Q!d Town
Hall renavations in Barre; provided further,that r~c~~fees th~t~$1,OQ0,000 shall be expended for
deve(c~pmentofa seniarcenter in Rutland; provided further,that nitless thin $1,50Q,000 shat€ be
expended for developmerstofa senior center in Tempfetflr~; provided further,that notless than
$x,540,000 vhall e ~xpertc6~d fc~rimprovements to town hall in Framingham;provided further,that
natI~~s than $8,000,000 shat!be expended for consfiruction cifa parkfnc~ g~r~ge in NafiPCk; provided
furtf~e~,that n4~less ~h~n $1(}0,0 0shat{ be expended forthe 1-4~stshorne Nouse in Wakefieid;
provided further,that notless than $1,300, 00shat( be eacpended forthe preservation ofthe
~~useum ~~African American History; provided further,that nc~t9es~ than $1,~0~, 00sha![ be
expended for~ s~niar renter in ~llalden; provided fiurther,that notlessfhan $1,OOO,D00 shale be
expended fc~r canstruc~tion ofa newfacilityforthe Lena(park Community DevelopmentCorporation;
~rgvide f~r~her,that r~c~t 4ess ti~an$~,OOq,ClO~ sha![ be expended farthQ preservation ofthe historic
registry rn ~tc~n~ham;~rovid~d fL~rther,that natless than $600,000 sh~l!be expended forthe
r~~ocati€~n refohs saltstorage sE~~ in Andover;pravided further,that not-less than 1,50 ,0 0shall
be expended #or A.DA improvements atthe town hall in Dracut; provided #urth~r,that notices fihan
$8,000,000shill be exp~nr~ed for Quabbin developrnen~ ire Bele}~erkawn;provided further,t#~a~ not
less thin X1,500,000 s~~all k~~ expended far EssexTown Hall exterior; provided further,that notless
than $350,x}00 shill be granted to Gloucesterfor an ec~nc~mic developmentstudyfir a pr~viou~ly-
identified area ofthe city with the potentialfarjob creation; provided further,that notless than
$17 ,000 sh~l( be expended for reimbursements ofreplaced cu[v~rts damaged in the May20 6
floe~ding in Rr~vvley; p~•avic~ed f~sr~her,that notless khan $25Q,OQ0 small be expended forsidewalk
cor~~tructian anc~ fiatimprov~~nents atSharan Yokaifiis park along Mauna1/err~on streetin tie
Dorchester~ectian ofthe city ofBastan; pravided fu~her,than nc~tless than $~00,000 shall be
expended for Nark's Ni!{ Housing in t~i~ town ofV4lakefeld; provided further,that notfees thin
$40,OOQ shall be expended ~~r new 1N~rld War(E IV1 marial in the town ofV1lakefie[d; provided
further,that netI~ss than $45,000 shall be expended for infiormation techna{agyd~cumenfi
managementsoiutians in the town ofWakefield; pravided further,thatnotlessthan $40,000 sh~Il be
expended fortechnalQgy upgradesfirfire departmentvel~icfes in the town of MarbCehead; provided
further,that notless than ~5,Ofl0 shat( be expended fortechnr~[ogY upgradesforfire department
~~ehic{es its the tr~vvn ofSwamps~c~tt; provided further,that notless thin $25,000 sh~l9 be expended
to enhance the real-ti~aefarer~~ic abilityofthe SwampscottPolice Departmentwith the use cifLive
Scanfinger print6r~g; provided fu~:her,thaf nofiie~s than $200,000 shall be expended fio fund wind or
sokar~nergY generation systems afithe transferstation in fihe town e~f Marblehead and a designated
buiEding in the town ofSw~~mps~afit; provided furfiher,that nofi less than ~1,OOO,C?0~ shall be
e~perrded fc~rthe renovation oftl~e cc~rnmunitysafety building in Arlington; provided further,that nab
less than 250,QQ0shat!b~ emended fir repairs to the Brattle Streeficulverk in Arington; provided
fiurt er,that notless than $50,000 shat( be expended forthe ~tVesfi Medford community Center;
provided further,thaf natless ~ha~ X30,000shall be expended on a securitysystem forthe Fart
Taber Military Museum;prc~vi~ed further,thatrat(ess than $3,OOfl,000 sha(i be expended far the
Add. 20