David I. Brody quoted in Massachusetts Lawyers Weekly on precedential effect of defense verdict in §148B case

November 7, 2022

David I. Brody, partner in the firm’s Employment Department, was quoted in the November 7th issue of Massachusetts Lawyers Weekly. The article, “Employment bar debates precedential effect of defense verdict in §148B case,” discusses a recent defense verdict in a Suffolk Superior Court misclassification case, Joel Weiss v. Loomis Sayles. The jury found that because the plaintiff provided services to the defendant through legitimate business, the Massachusetts independent contractor statue did not apply.

Read the full article from Massachusetts Lawyers Weekly (subscriber content).

From the article:

But Boston attorney David I. Brody cautioned against reading too much into the jury’s verdict.

The law is “crystal clear” that companies cannot make end runs around the Wage Act, which is still true even when otherwise “legitimate” entities are involved in an employment arrangement, he said.

The 2020 Appeals Court decision in the Weiss case itself held unequivocally that the fact that the defendant obtained the plaintiff’s services through a legitimate staffing company did not automatically render §148B inapplicable, Brody noted.

“The question is whether the putative employer attempted to construct a real or sham arrangement, not whether the businesses themselves are real or shams,” Brody said.

He added that how the issue had been framed on the jury slip “played an outsized role” in how the case was resolved.

That question — which asked whether the staffing firm or the plaintiff’s consultancy were “legitimate” businesses — never seemed to be in dispute.

“Everyone agreed the answer to that was yes,” Brody said.

Instead, the question should have been framed to ask the jury whether the defendant sought out the plaintiff’s services specifically, as opposed to any software engineer the staffing firm chose to provide, according to Brody.

“The idea that a legitimate business’s involvement as an intermediary provides protection from §148B claims is not in accordance with the law,” he said.