Where a plaintiff taxi driver has charged the defendant dispatch company with misclassifying him as an independent contractor, the plaintiff cannot satisfy the test for employee status, so the defendant is entitled to summary judgment.
Contractor status
“Counts V, VI, VII, and VIII are all predicated on [plaintiff Jozef] Kubinec’s contention that he was actually an employee of [defendant] Top Cab within the meaning of G.L.c. 149, §148B. In this case, Top Cab provided the service to Kubinec and his alter-ego corporation Nippon; Kubinec and Nippon owned the medallion and the taxi that Kubinec drove; Kubinec decided when to drive it and what fares to pick up; and Top Cab received the same modest weekly fee regardless of whether Kubinec had his cab on the road twenty-four hours a day and himself employed additional drivers, or left it parked in his driveway. Simply stated, Kubinec’s assertion that he is Top Cab’s employee makes no sense. Indeed, if you divide the sum that the plaintiffs paid to Top Cab for the three year period June, 2009 through June, 2012 — $2,000 — by the number of weeks in that period, you compute a weekly fee of approximately $12.75. Under the plaintiffs’ theory, Top Cab was nonetheless responsible for paying Kubinec minimum weekly wages, even if he decided not to drive, and potentially overtime as well, if he decided to drive in excess of forty hours. That would be nice work if you could get it. …
“[T]he three part test that determines whether an individual is an employee or an independent contractor must be undertaken only if the plaintiff is providing a service for the defendant. In this case, the summary judgment record fails to provide any evidence that Nippon or Kubinec were providing services for Top Cab. Indeed, the facts suggest just the opposite relationship, i.e., Nippon pays a modest weekly fee to be a member of a dispatch ‘service,’ without which it could not lawfully operate a taxi even though it owns a medallion. Under Rule 403, all taxis operating in Boston must belong to an authorized cab association, such as Top Cab, which is, in turn, required to provide dispatch services, including GPS, to members to qualify as a dispatch service. It is true that Top Cab provided dispatches, i.e., potential passengers to its members; however, Top Cab’s members were not required to accept a dispatch. In fact, Top Cab’s dispatches constituted only approximately 9.95% of all fares driven by Top Cab members in 2010.
“While it may be the case that if some number of Top Cab’s members repeatedly refused dispatches and no cabs were willing to pick up potential passengers calling in to Top Cab, with the result that over time, the public stopped calling, then Top Cab might cease to be an attractive dispatch service to members. Top Cab’s members might then choose to belong to one of the other several dispatch services available to Boston medallion owners. Top Cab therefore might be said to receive an incidental benefit when some member accepted a dispatch. However, more importantly for this case, Top Cab received no income from that dispatch. Indeed, it received only the same weekly payment from its members regardless of whether dispatches were accepted or passengers simply hailed member cabs from the street. Moreover, in the real world taxi drivers compete for fares, and it is Top Cab that provides the service of offering dispatches to its members, in addition to the service of providing and maintaining the communications and GPS equipment that every medallion owner must have in its cab.
“But even if this court assumes, arguendo, that the plaintiffs were providing a service to Top Cab for purposes of G.L.c. 149, §148B, for the reasons discussed below, Top Cab has met its burden of establishing all three indicia that it has an independent contractor relationship with Kubinec/Nippon; indeed, that it has an independent contractor relationship with all its members under G.L.c. 149, §148B(a)(1)-(3). …
“First, Top Cab must show that Kubinec/Nippon were ‘free from control and direction in connection with the performance of the service,’ both under the contract for the performance of the service and in fact. G.L.c. 149, §148B(a)(1). The summary judgment record establishes that. … Kubinec was free to drive where he chose and as often or little as he chose. …
“Next, Top Cab must demonstrate that ‘the service is performed outside the usual course of the business of the employer.’ See G.L.c. 149, §148B(a)(2). According to Top Cab’s Articles of Organization, it is engaged in the business of radio dispatch and communication services for passengers for hire. …
“The plaintiffs rely on an advisory opinion from the Massachusetts Office of the Attorney General in support of their contention that Top Cab cannot establish the second prong of the independent contractor test. … In particular, the plaintiff directs the court to footnote four of the 2008 Advisory, which quotes a passage from a case decided by the Supreme Court of Illinois: Carpetland US.A., Inc. v. Illinois Department of Employment Security, 201 Ill.2d 351, 386 (2002). …
“Having cited the O’Hare-Midway Limousine Service [v. Baker, 232 Ill. App. 3d 108 (1992)] case as an example of how to draw a distinction between services that are incidental to, rather than a necessary part of, a company’s business, the court is convinced that the Attorney General would draw the same distinction as the Illinois Supreme Court did between (i) a limousine service that leases cars to its drivers and derives revenue directly from the passengers referred to the limousine drivers and (ii) a taxi dispatch service that receives a flat fee for communication/GPS equipment and provides passenger referrals that a driver can accept or reject, and which in any event receives no additional income when a referral is accepted. This court certainly draws that distinction between these two very different businesses. …
“Finally, Top Cab must demonstrate that the plaintiffs were ‘customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.’ G.L.c. 149, §148B(a)(3). …
“In this case, Kubinec is quintessentially his own boss. He (or Nippon) owns the
medallion and the taxi. He is free to set his own work schedule and to drive where he wishes. He can take advantage of referrals that Top Cab sends him or reject them if he thinks that he can earn more picking up other fares that he finds himself. He is not accountable to Top Cab and need not explain his choices to Top Cab. He is also free to take his taxi and medallion and join another dispatch service if he is dissatisfied with Top Cab, as he did in this case. …
“[I]n this case, Kubinec had already established himself as an independent entrepreneur before entering into any agreement with the defendants. He owned his own taxicab and medallion before contracting with City Cab or Top Cab. Kubinec decided when to drive that cab and where he would drive it. Even when Top Cab sent him dispatches regarding passengers in need of his services, he was not required to accept them. Kubinec’s passengers paid him, and he did not remit any part of the fare to Top Cab. When he became dissatisfied with Top Cab, he joined a different dispatch service and continued his taxicab business. Top Cab has met its burden under the third prong of the independent contractor test.
“Since Kubinec was an independent contractor and not an employee of Top Cab, within the meaning of G.L.c. 149, §148B, his claims for wage and overtime violations also fail, and summary judgment will enter dismissing Counts V, VI, VII, and VIII.”