Whitman's Case
952 N.E.2d 983
Mass. App. Ct.2011Background
- Whitman, a drywall worker, started Creative Drywall in 2003 but received most work through Sarcia, Citrano, and Pace (PPM).
- From 2004 to 2006, Whitman performed five-to-seven days per week for these principals at multiple sites, paid $250 daily, without bids or signed contracts.
- PPM and Sarcia supplied all materials; Whitman used his own tools and was directed daily by Pace and Sarcia rather than by Creative Drywall.
- Whitman’s income came exclusively from these arrangements; 1099 forms appeared later for 2006 earnings, indicating non-employment status by some standards.
- Whitman was injured on a site associated with PPM/Sarcia; he sought workers’ compensation as an employee of both entities.
- Administrative judge found Whitman was an employee of both PPM and Sarcia, creating a consortium of employers with joint statutory liabilities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Whitman was an employee or independent contractor | Whitman argues he was an employee through continued control and integration by the group. | PPM contends Whitman was an independent contractor given lack of contract and control. | Whitman was an employee; not an independent contractor. |
| Whether there was a joint employment by two employers | Whitman’s work was controlled and mutually benefited by PPM and Sarcia, supporting joint employment. | PPM argues no joint employer arrangement due to lack of single ownership/management. | Whitman jointly employed by PPM and Sarcia; both liable. |
Key Cases Cited
- MacTavish v. O’Connor Lumber Co., 6 Mass. Workers’ Comp. Rep. 174 (1992) (multi-factor test for employee status drawn from Restatement guidance)
- Gurry v. Cumberland Farms, Inc., 406 Mass. 615 (1990) (joint venture/partnership-like joint employment considerations)
- Williams v. Westover Finishing Co., 24 Mass. App. Ct. 58 (1987) (recognition of concurrent employment under workers’ compensation)