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Superior Court Judge Finds Independent Contractor Law Pierces Massachusetts Sovereign ImmunityRecently, in the case Jergensen v. Massachusetts Historical Commission, a preservation planner working for the Massachusetts Historical Commission filed suit against the company for refusing her overtime pay by incorrectly listing her as an independent contractor. In the case, the Superior Court judge has ruled that the plaintiff can sue under G.L.c. 149, §148B. However, the commonwealth counter-argued that Jergensen’s lawsuit was barred under the doctrine of sovereign immunity.

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Peter B. Krupp, the judge handling the case, disagreed with the Commonwealth’s claims, as he determined that the stated waived its access to sovereign immunity due to Section 148, which statutes call for “every public officer” to effectively and properly perform all duties in regards to paying, approving, auditing, and verifying payrolls.

“This provision shows the Legislature’s intent to hold public officials responsible for violations of Section 148,” said Krupp speaking on his denial of the Commonwealth’s motion. “On the other hand, because Section 148 applies only to certain limited categories of state employees [mechanics, workmen, laborers or those working for a penal or charitable institution], the existence of a private cause of action and waiver of sovereign immunity … is similarly limited to those employees. … Plaintiff may pursue a claim under Section 148, if she falls into one of the itemized categories.”

However, the plaintiff’s claim for overtime under the provisions of the Minimum Fair Wage Act (G.L.c. 151, §1A) was found to be barred under sovereign immunity by Judge Krupp.

Breakdown of the Alleged Misclassification

Jergensen worked for the Massachusetts Historical Commission from June 2010, April 2013, and was hired alongside two other preservation planners that were both given full employee status. Due to the similarity of the hiring process and workload of the employees in question, Jergensen feels she was misclassified when hired as an independent contractor. Because she was unrightfully denied the title of a full state employee, Jergensen claims she was refused the benefits and overtime pay she earned by working up to 6 hours of overtime per month at the company.

The original suit filed by Jergensen against the Massachusetts Historical Commission was filed in Superior Court on November 5, 2014. Jergensen’s suit filed claims of violation of the Minimum Fair Wage Law, federal Fair Labor Standards Act and the Independent Contractor Statute.

Krupp’s Decision

Although Krupp found that no statutes within Section 148B explicitly provide a private right of action against the commonwealth, he did determine that the section can provide such a right given the right context. Krupp demonstrates that Section 148 states all employers must pay wages to employees who or employed in a “penal or charitable institution.” Speaking on the matter, Krupp states “the Legislature has waived sovereign immunity to permit a private right of action to redress violations of the obligations imposed on government employers under Section 148.”

Due to this information, Krupp found that Jergensen could pursue relief for misclassification if she could prove that she fit into one of the itemized categories of state employees that is classified within Section 148.

In his denial of Jergensen’s attempt to use the Minimum Fair Wage Law to support her case, Krupp used a 1979 Appeals court decision from Grenier v. Town of Hubbardston to reach his decision, as the case determined the act did not apply to cities and towns. Ultimately, Krupp concluded that under G.L.c. 151, §1A, the Legislature did not waive sovereign immunity in order to permit a private cause of action against the commonwealth.

Arthur Hardy-Doubleday

Author Arthur Hardy-Doubleday

Arthur Hardy-Doubleday practices law in Cambridge and Martha's Vineyard Massachusetts. He works in the areas of Real Estate, Personal Injury, and Consumer Protection Law. When not practicing law, Arthur enjoys sailing, hanging out with friends on the beach, and waking his dog "Ridiculous."

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