ROMAN LEVIN v. PURITAN DISTRIBUTION, INC., & Others.

• Court: Massachusetts Appeals Court
• Decided: May 5, 2026
• Docket: 25-P-0655
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-655

ROMAN LEVIN

vs.

PURITAN DISTRIBUTION, INC.,1 & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Roman Levin, filed an action, asserting,

inter alia, that the defendants, Puritan Distribution, Inc.,

doing business as North Shore Shuttle, Gina Walker, and Clinton

Walker (collectively, North Shore), misclassified him as an

independent contractor under G. L. c. 149, § 148B, and as a

result, failed to pay wages due to him in violation of the Wage

Act, G. L. c. 149, § 148. The parties filed cross motions for

summary judgment.3 A Boston Municipal Court judge allowed North

1 Doing business as North Shore Shuttle.

2 Gina Walker and Clinton Walker.

3Specifically, Levin moved for summary judgment on counts related to North Shore's alleged misclassification of him under G. L. c. 149, §§ 148B, 150; and nonpayment of wages under G. L. Shore's motion for summary judgment and denied Levin's motion

for partial summary judgment. Levin appealed to the Appellate

Division. On April 15, 2025, a panel of the Appellate Division

of the Boston Municipal Court Department affirmed. We affirm.

Background. 1. North Shore's business. North Shore is a

transportation services company offering shuttle bus, limousine,

van, and car services out of Revere. Customers reserve North

Shore's services via a "web portal" or over the telephone.

North Shore confirms reservations through an e-mail confirmation

system.

In operating its business, North Shore employs

"reservation/dispatch agents" who use radio, text, or a

landline-to-text application to communicate with drivers.

Employees are provided with an e-mail address -- consisting of

their first name followed by "@BeDriven.com" -- and have access

to the network to conduct their duties. North Shore leases

driving services -- i.e., its "drivers" -- from Driver Staffing

Inc. North Shore advertises its services over the Internet,

contracting with a digital marketing agency to maintain its

website, LinkedIn, Facebook, Pinterest, and Twitter pages.

c. 149, § 148. North Shore moved for summary judgment on the same counts as Levin, as well as on a Levin's count alleging North Shore's failure to maintain proper payroll records and issue paystubs under G. L. c. 149, § 148.

2 2. Levin's services. Levin began providing information

technology (IT) services for North Shore in 2003.4 For

approximately the next fifteen years, North Shore engaged Levin

intermittently, and on an as-requested basis, for services

related to North Shore's computers, printers, Internet

connection, and e-mail, radio, and telephone operations.

Specifically, the record indicates that Levin assisted North

Shore when the company's phone lines were disrupted, facilitated

the creation of e-mail accounts for new employees, provided

occasional technical training to North Shore's employees, and

acted as an intermediary between North Shore and technology

vendors, among other tasks.5 North Shore provided Levin with a

business e-mail address to communicate internally with North

Shore employees and externally with North Shore's vendors.

At all relevant times, North Shore compensated Levin at a

rate of $65 per hour for standard work and $100 per hour for any

work requiring immediate assistance. The parties did not enter

into any written agreements or contracts pertaining to Levin's

4 The parties do not dispute that Levin began working for North Shore as a driver in 2002, before transitioning to providing IT services in 2003.

5 Other tasks included updating North Shore's phone system's firmware, mixing recordings for North Shore's customer-facing phone lines, and purchasing and taking inventory of radios.

3 performance of services, and North Shore did not issue Levin a

W-2 wage statement or withhold taxes from Levin's compensation.

Levin testified that he was available "on demand and daily," and

the record reflects that his hours were dictated based on North

Shore's needs. Levin kept track of his hours and tasks and

submitted invoices to North Shore for payment.

Levin's work for North Shore was performed almost entirely

remotely. On several occasions unrelated to his work, Levin

traveled abroad for extended periods of time. Notably, Levin

attended graduate school in Spain for approximately one year

during which time he was available to perform IT services for

North Shore.

3. Levin's misclassification claim. Relevant to the

present action, between September of 2019 to January of 2020,

Levin performed services for North Shore for which he alleged

North Shore failed to make payments.6 On January 21, 2020, Levin

sent a letter to Gina and Clinton Walker, North Shore's chief

executive officer and chief financial officer respectively,

notifying the parties of the suspension of his services until he

received payment. In the letter -- featuring a letterhead in

which Levin referred to himself as an "Information Technology

6 Levin's invoices indicate that he performed services for North Shore for approximately forty-eight of the eighty business days during this period.

4 Consultant" with a personal e-mail address -- Levin wrote, "We

all understand how crucial your server is to your business, and

I'm hoping we can achieve a resolution as soon as possible. I

know that you can appreciate that my IT services depend upon

payment by my clients, just as your business does." North Shore

declined to make payment.

Discussion. "We review the disposition of a motion for

summary judgment de novo." Barron Chiropractic &

Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800,

804 (2014). Under the independent contractor statute within the

Wage Act, G. L. c. 149, § 148B, "an individual performing any

service is presumed to be an employee" (quotation and citation

omitted). Sebago v. Boston Cab Dispatch, Inc., 471 Mass. 321,

327 (2015). A putative employer can rebut this presumption only

by establishing all three of the factors set forth in G. L.

c. 149, § 148B (a) (commonly referred to as the "ABC test");

namely that,

"[1] the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact ['prong a']; and,

"[2] the service is performed outside the usual course of the business of the employer ['prong b']; and,

"[3] the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed ['prong c']."

5 See Somers v. Converged Access, Inc., 454 Mass. 582, 591 (2009)

(characterizing ABC test as a "strict liability statute"

notwithstanding whether employer's misclassification was in good

or bad faith).

On appeal, Levin argues that the Boston Municipal Court

judge erred in finding that North Shore met its burden as to

each prong of the ABC test, and in concluding that he performed

services for North Shore as an independent contractor. Based on

the record, we disagree.

1. Control and direction. In determining whether an

employer met its burden to establish that an individual was free

from its "control and direction," we consider two primary

factors: (1) the putative employer's right to control the

details of the performance, and (2) the putative employee's

freedom from supervision "not only as to the result to be

accomplished but also as to the means and methods that are to be

utilized in the performance of the work." Maniscalco v.

Director of the Div. of Employment Sec., 327 Mass. 211, 212

(1951), quoting Griswold v. Director of Div. of Employment Sec.,

315 Mass. 371, 372–373 (1944). See Athol Daily News v. Board of

Review of the Div. of Employment & Training, 439 Mass. 171, 178

(2003) ("the test is not so narrow as to require that a worker

6 be entirely free from direction and control from outside forces"

[quotation omitted]).

First, we note that the lack of a contract between Levin

and North Shore in connection with his services disposes of the

question whether North Shore expressly retained the right to

control the details of Levin's performance. Thus, we turn to

whether Levin was free from North Shore's control and direction

as a matter of law. Levin argues that North Shore controlled

his performance by "regularly direct[ing] [him] as to when to

complete his work," pointing to communications where North

Shore's officers asked for certain, discrete tasks to be

completed "ASAP" or within a particular day. Although these

communications indicate that North Shore, at times, prompted

Levin's services based on its immediate business needs, they

alone do not establish that North Shore directed the "means or

methods" of Levin's work. See Athol Daily News, 439 Mass. at

178 (publisher's requirement that "newspapers be delivered in

good condition and before a certain time each day" was, alone,

insufficient to constitute control and direction over carriers'

performance).

Rather, there is sufficient evidence to conclude, as a

matter of law, that Levin performed his services free from North

Shore's direction and control. Relevantly, the record indicates

7 that North Shore requested services but left Levin to determine

the technical details required to achieve the result.

Furthermore, that North Shore's officers requested updates from

Levin regarding the status of tasks does not warrant a

conclusion that he was subject to North Shore's "supervision,"

as Levin contends.

Additionally, at no time did North Shore provide Levin with

any training, supplies, or equipment to perform his services.

Contrast Weiss v. Loomis, Sayles & Co., 97 Mass. App. Ct. 1, 8

(2020) (employer provided technology services employee with work

station, supplies, and equipment). There is also no evidence

that North Shore set or limited Levin's hours, or that Levin's

hours were subject to North Shore's supervision or approval.

Contrast id. (employee submitted hours weekly for approval,

which employer retained authority to supervise or limit).

Lastly, that Levin performed tasks for North Shore remotely

while living abroad for a year and pursuing a graduate degree,

evinces his freedom from North Shore's supervision. See Sebago,

471 Mass. at 332 (citing Attorney General advisory that "an

independent contractor completes the job using his or her own

approach with little direction and dictates the hours that he or

she will work on the job" [emphasis added; citation omitted]).

Contrast Weiss, 97 Mass. App. Ct. at 8 (employer "actively

8 supervised" employee's performance from "office directly across

from [employee's] cubicle").

In sum, we conclude that North Shore met its burden in

establishing that Levin was free from its control and direction.

2. Usual course of business. Next, in assessing whether

Levin performed his services outside the usual course of North

Shore's business, we consider (1) how North Shore defines its

business, and (2) "whether the services [were] necessary or

merely incidental to the business." Weiss, 97 Mass. App. Ct. at

8. See Carey v. Gatehouse Media Mass. I, Inc., 92 Mass. App.

Ct. 801, 805-808 (2018). "[A] service need not be the sole,

principal, or core product that a business offers its customers,

or inherently essential to the economic survival of that type of

business, in order to be furnished in the usual course of that

business." Carey, supra at 808.

North Shore holds itself out as a business "providing

transportation services for public and private organizations

including airport, school, business and personal transport."

Levin contends that the IT services he provided were "necessary"

to North Shore's daily operations, and therefore, were performed

in its usual course of business, despite North Shore's "core

product or service" being that of transportation.

9 Levin relies heavily on Weiss, 97 Mass. App. Ct. at 9,

where the defendant, a financial investment company, failed to

establish that the plaintiff, a software engineer working in the

"technology group," performed services outside of the company's

usual course of business. Notwithstanding the general

similarity of services provided by the plaintiff in Weiss and

Levin, Weiss is distinguishable. In Weiss, the technology group

provided full-time, continuous services to the company's

investment professionals. See id. In contrast, Levin's

services were provided only on North Shore's request, and even

then, intermittently over the course of his engagement.

Additionally, whereas the company in Weiss publicly advertised

the role the technology group played in the success of the

business and included the group's accomplishments in annual

reports to its board, the services Levin performed for North

Shore were not publicized as a salient feature of the product

North Shore delivered. See id. See also Athol Daily News, 439

Mass. at 179 (illustrating concept of services provided within

employer's usual course of business with three examples: art

instructor providing services on "regular or continuous basis"

within art museum; musicians performing as "usual and customary"

activity of beer bar; and organist playing music as "usual part

of" funeral home's business [citations omitted]).

10 Based on the relevant factors above, we conclude that North

Shore met its burden in establishing that Levin's services were

performed outside of the usual course of its business.

3. Independently established trade or business. Lastly,

in determining whether Levin was "engaged in an independently

established trade . . . or business of the same nature as that

involved in the service performed," G. L. c. 149,

§ 148B (a) (3), we consider "whether the service in question

could be viewed as an independent trade or business because the

worker is capable of performing the service to anyone wishing to

avail themselves of the services or, conversely, whether the

nature of the business compels the worker to depend on a single

employer for the continuation of the services." Athol Daily

News, 439 Mass. at 181. Put differently, we "seek[] to discern

whether the worker is wearing the hat of an employee of the

employing company, or is wearing the hat of his own independent

enterprise." Boston Bicycle Couriers, Inc. v. Deputy Director

of the Div. of Employment & Training, 56 Mass. App. Ct. 473, 480

(2002).

The record indicates that Levin was free to perform IT

services for others, as demonstrated by his own representations

in his letter to North Shore in January of 2020. Within the

correspondence Levin referred to himself as an "Information

11 Technology Consultant," and used language showing independence

from North Shore, noting that he understood "how crucial your

server is to your business," and that his "IT services

depend[ed] upon payment by my clients, just as your business

does" (emphasis added). Moreover, Levin took it upon himself to

suspend services to North Shore -- an act entirely inconsistent

with an employee. From this language, it is evident that Levin

wore "the hat of his own independent enterprise," and was

capable of performing his services to others. See Boston

Bicycle Couriers, Inc., 56 Mass App. Ct. at 480.7

Levin contends that North Shore failed to meet its burden

under prong c because it did not produce or identify evidence

that demonstrated that Levin did, in fact, perform IT services

for other businesses during his engagement with North Shore.

This argument falls short, as the pertinent inquiry is not

7 Levin argues, relying on Somers, 454 Mass. at 591, that his "subjective belief" regarding whether he was classified as an independent contractor, as indicated by his language in the letter, is not relevant to the determination of the relationship between himself and North Shore. This argument misses the mark. Levin's letter not only indicated his subjective belief that he was providing services as an independent contractor, but also, that he was capable and free to perform such services to other "clients" of his own and that he held himself out to others as an independent contractor and was "capable of performing the service to anyone wishing to avail themselves of the services." Athol Daily News, 439 Mass. at 181. We therefore discern the letter's language to be relevant to whether North Shore met its burden under prong c.

12 whether Levin, in fact, performed IT services for others, but

whether he was free and capable of doing so. See Athol Daily

News, 439 Mass. at 182. See also id. at 180 (deeming "far too

stringent" employment board's requirement that, to satisfy

prong c, worker's services must "constitute in fact an

independently established enterprise capable of operating

without the benefit of its relationship" to putative employer).

Given the "nature of the services" Levin performed for North

Shore, we conclude that Levin was not "compel[led] . . . to

depend on" North Shore "for the continuation of [his] services."

Id. at 181. As discussed above, North Shore did not dictate or

supervise Levin's hours, provided minimal guidelines as to the

details of his work, and generally allowed Levin to perform his

services with minimal supervision. Contrast Coverall N. Am.,

Inc. v. Commissioner of the Div. of Unemployment Assistance, 447

Mass. 852, 859 (2006) (affirming examiner's finding that worker

was compelled to depend on employer for continuation of services

where employer required worker provide, and adhere to, daily

work plan, among other requirements); Weiss, 97 Mass. App. Ct.

at 10 (employee was not free to provide services to other

business where contract between employee and employer contained

provision limiting employee's other employment insofar as it did

not impair performance for employer).

13 We therefore conclude that North Shore met its burden in

establishing that Levin was "engaged in an independently

established trade . . . or business" under G. L. c. 149,

§ 148B (a) (3).

Conclusion. For the foregoing reasons, we conclude that

North Shore established, as a matter of law, that Levin

performed services as an independent contractor. We therefore

affirm the Appellate Division's affirmance of the trial court's

grant of summary judgment in North Shore's favor.8

Decision and order of Appellate Division affirmed.

By the Court (Meade, Hodgens & Allen, JJ.9),

Clerk

Entered: May 5, 2026.

8 Levin's request for attorney's fees is denied.

9 The panelists are listed in order of seniority.