Weiss v. Loomis, Sayles & Company, Inc.

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23-P-183 Appeals Court

JOEL WEISS vs. LOOMIS, SAYLES & COMPANY, INC., & another.1

No. 23-P-183.

Suffolk. December 1, 2023. – March 28, 2024.

Present: Wolohojian, Milkey, & D'Angelo, JJ.

Independent Contractor Act. Practice, Civil, Instructions to
jury, Special verdict.

Civil action commenced in the Superior Court Department on
January 30, 2014.

Following review by this court, 97 Mass. App. Ct. 1 (2020),
the case was tried before Christine M. Roach, J.

Stephen S. Churchill for the plaintiff.
James W. Bucking (Allison L. Anderson also present) for the
defendants.

MILKEY, J. The plaintiff, Joel Weiss, is a software

engineer. Over a three-year period, he provided services to the

defendant, Loomis, Sayles & Company, Incorporated (Loomis), an

investment firm. Weiss brought the current action pursuant to

1 Loomis, Sayles & Company, L.P.
2

G. L. c. 149, § 148B (a), claiming that he properly should be

considered to have been an "employee" of Loomis, and that, as

such, he was entitled to the benefits he would have received had

he been so classified. Loomis maintained that Weiss lacked

standing to bring such a claim, because Weiss provided his

services to Loomis through two layers of intermediary entities.

A jury ruled in Loomis's favor on the standing issue, and

judgment entered that "Weiss shall take nothing." On appeal,

Weiss challenges the jury instructions on standing, and the

wording of the special verdict slip on that issue. For the

following reasons, we conclude that when the verdict slip is

viewed in conjunction with the jury instructions, Weiss is

unable to show error or prejudice. We therefore affirm.

Background. "The purpose of the independent contractor

statute [G. L. c. 149, § 148B] is 'to protect workers by

classifying them as employees, and thereby grant them the

benefits and rights of employment, where the circumstances

indicate that they are, in fact, employees.'" Chambers v. RDI

Logistics, Inc., 476 Mass. 95, 100 (2016), quoting Depianti v.

Jan-Pro Franchising Int'l, Inc., 465 Mass. 607, 620 (2013).

Where individuals provide services directly to the employer, the

application of the statute is relatively straightforward: they

are presumptively considered employees unless the employer --

carrying the burden of proof -- proves that three separate
3

prongs are all satisfied.2 Chambers, supra. However, the

situation becomes murkier where the individual provides services

to the employer through an intermediary entity. In such

circumstances, the individual may not have standing to pursue a

misclassification claim, because the statute was not intended to

bar "legitimate business-to-business relationship[s]."3 Id. at

109. The question is whether the corporate form of the

intervening firm "represents" such a relationship or instead is

"one whose raison d'etre is to prevent the classification of

workers as employees." Id. As the case before us illustrates,

2 These are:

"(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;
and

(2) the service is performed outside the usual course of
the business of the employer; 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."

G. L. c. 149, § 148B.

Although the cases characterize the issue as one of
3

standing, it does not go to whether the plaintiff suffered harm,
but instead whether the statute was intended to apply to the
plaintiff's circumstances. In some respects, the issue is
perhaps better viewed as adding an additional set of substantive
considerations to the existing three-prong test of what makes a
worker an employee.
4

framing how a jury is to resolve whether a business-to-business

relationship is "legitimate" can be challenging.

Loomis paid for Weiss's services through a contract it had

entered into with the Eliassen Group (Eliassen), a large and

long-established staffing company. The contract was specific to

Weiss's services. Eliassen retained a portion of the money that

Loomis paid for Weiss's services, and paid the rest to JoSol,

Inc., an S corporation that Weiss wholly owned and controlled.

Weiss received compensation for the services he provided to

Loomis by drawing a salary from JoSol. He had formed JoSol one

year before he began working for Loomis.

Throughout the case, Loomis's principal defense was that

Weiss could not maintain an action pursuant to the statute

because it obtained Weiss's services through two legitimate

business-to-business relationships, its own relationship with

Eliassen, and Eliassen's relationship with JoSol. According to

Loomis, either of those relationships on its own precluded Weiss

from bringing a misclassification claim and, taken together,

they made it doubly clear that Weiss lacked standing. Indeed,

Loomis argued that because both Eliassen and JoSol independently

existed prior to its contracting for Weiss's services, Weiss

could not demonstrate his standing as a matter of law.

After Weiss rested his case at trial, a Superior Court

judge allowed Loomis's motion for a directed verdict. Passing
5

over Loomis's argument that Weiss lacked standing, the judge

concluded that Weiss's misclassification claim failed as a

matter of law on the merits. Judgment entered in Loomis's

favor, and Weiss appealed. In a published opinion, this court

reversed the judgment and remanded for a second trial. Weiss v.

Loomis, Sayles & Co., 97 Mass. App. Ct. 1, 10 (2020) (Weiss I).

Along the way, we considered whether Weiss lacked standing, an

argument Loomis had put forward as a potential alternative

ground for affirming the judgment. Id. at 6-7. The court

concluded, albeit without lengthy discussion, that Weiss had

presented sufficient evidence to send the standing issue to the

jury. Id. at 7.

On remand, the same judge presided at the second trial.

She provided the parties extensive opportunities to frame the

jury instructions and verdict slip. Unsurprisingly, Weiss

favored language that sought to minimize the role that Eliassen

and JoSol played in the relationship that he had with Loomis,

while Loomis did the opposite. Weiss argued that he had

standing to bring a misclassification claim if Loomis "used"

Eliassen and JoSol to avoid classifying him as an employee,

regardless of whether Loomis had played a role in "creating"

those intermediaries. Based on this, Weiss argued that the jury

should be instructed that standing existed where an employer

"created or used" intermediaries to evade the statute. Loomis
6

countered that the jury should be instructed that standing

existed only if it had "created and maintained" Elliassen and

JoSol to evade the statute. By using "and" instead of "or,"

Loomis sought to convey that standing could not exist unless it

had been involved in the creation of the intermediaries.4 As is

discussed in detail below, the final jury instructions on

standing, set forth in the margin, were consistent with Weiss's

position on that issue.5

4 Although the parties initially differed on whether "used"
or "maintained" should be used, Weiss signalled that
"maintained" was acceptable, and the parties ended up treating
the words as equivalent. Their debate thus crystallized about
whether the terms "created" and "used" (or "maintained") should
be linked by an "and" or an "or."

5 The full instructions on standing were as follows:

"Standing. The misclassification statute seeks to
protect individual workers who provide services. For this
reason legitimate independent contractor and business-to-
business relationships may be excluded from potential
liability under this law.

"As the plaintiff it is Mr. Weiss's burden to prove by
a preponderance of the evidence that the law applies to him
for purposes of the software engineering services he
performed at Loomis, the law calls this requirement
standing.

"It is for you, the jury, to determine under all of
the factual circumstances presented whether Mr. Weiss has
met this burden.

"If a business is created and maintained in order to
avoid the misclassification law and to avoid its
protections for employees, then it is not a legitimate
business.
7

The phrasing of the verdict slip followed a somewhat more

complicated path. By the sixth day of trial, the judge had

signalled her intention that the verdict slip be worded

consistent with Weiss's position that standing turned on whether

Loomis had "created or used" Eliassen and JoSol to evade the

statute. Loomis vigorously objected and reiterated its position

that "created and maintained" should be used instead. At the

"Similarly, if a company requires a worker to set up a
separate business in order to provide his services to the
company, then that requirement means the separate business
is not a legitimate business.

"In other words, the fact that Loomis obtained Weiss's
services through a contract with a legitimate staffing
company does not automatically make the statute
inapplicable.

"An employer may not insulate itself from liability
for misclassification by causing or creating another entity
to contract with its employees, nor may an employer use
contractual arrangements with third parties as an end run
around the statute.

"Factors that you may consider in assessing the
relationship of the three businesses, Loomis, Eliassen, and
JoSol at issue here include whether the services that
Eliassen provided or the services that JoSol provided were
available to clients other than Loomis, whether the
business of Loomis is different from or the same as the
services performed by JoSol, and whether Eliassen and JoSol
operated as business entities on their own initiative or
because Loomis required them to do so.

"These factors are not exhaustive. In order to
determine whether Mr. Weiss's use of JoSol and Eliassen was
his own decision or forced upon him by Loomis to
misclassify him, you may consider any evidence you have
heard in the case."
8

end of a lengthy discussion, the judge stated that Loomis had

persuaded her. The judge then called a break in the proceedings

so that the "created and maintained" language could be

substituted for "created or used" in her working version of the

verdict slip. After reviewing the edited version, both sides

reported to the judge that she had made the change that she said

she would make. The judge then provided the verdict slip to the

jury in the form set forth in the margin.6

Lost in the moment was the fact that the verdict slip in

fact had two parts: one that provided a shorthand summary of

the standing issue in the form of a question, and another that

provided the jury potential answers to that question. In her

edited version, the judge had changed "created or used" to

"created and maintained" in the first portion, but not in the

second. As a result, the portion of the verdict slip that the

jury were asked to complete distinguished between "business

relationships" that were "legitimate," and those that instead

6 "STANDING

1. Did Joel Weiss provide services to Loomis through
legitimate business-to-legitimate business relationships
with either Eliassen or JoSol, or were those businesses
created and maintained for purposes of misclassification
of Mr. Weiss?

YES, legitimate business relationships ______

NO, _______ was created or used for purposes of
misclassification."
9

were "created or used for purposes of misclassification." That

language was fully consistent with Weiss's position on the

underlying law.

Overnight, counsel for Loomis noticed the inconsistency and

brought it to the judge's attention the following day. Because

the jury were still deliberating, Loomis urged the judge to

correct the problem and to provide the jury with a new version

of the verdict slip. Weiss vigorously opposed that proposal,

arguing that it was too late to switch gears and that, in any

event, the "created or used" phrasing should not be changed

because it was, in fact, correct. While indicating that she

disagreed with Weiss on the merits of that issue, the judge

decided to let the internally inconsistent version of the

verdict slip stand.

The jury ultimately answered the standing question in

Loomis's favor, and judgment accordingly entered that Weiss

would "take nothing."

Discussion. On appeal, Weiss principally challenges the

wording of the special verdict slip. The thrust of his argument

is that the "created and maintained" language communicated to

the jury that they were required to rule in Loomis's favor on

standing unless Loomis had created both Eliassen and JoSol as a

means of evading the statute. Because it was always undisputed

that both intermediary entities already independently existed by
10

the time Loomis sought Weiss's services, Weiss maintains that

the net effect of how the verdict slip was phrased was to compel

a jury verdict in Loomis's favor on standing.7

The underlying legal question that the parties debated and

continue to debate is whether a worker could have standing to

bring a misclassification claim where the putative employer did

not itself create, or compel the creation of, intermediary

entities through which the worker nominally provided his

services. Both sides are armed with nontrivial arguments in

their favor. Loomis argues that if a worker is nominally

employed by an independently created staffing firm, such as

Eliassen, with which it has contracted for services, its

relationship with that firm is a "legitimate business

relationship" that precludes the worker's standing. Loomis also

points to the use of the "created and maintained" language in

Chambers and its progeny. In Chambers, for example, the court

noted with apparent approval, that the Attorney General has

taken the position that the presence of intermediary entities

that are "'created and maintained in order to avoid [application

7 Weiss argued to the judge that the phrasing of the verdict
slip was at odds not only with Chambers and other precedent from
the Supreme Judicial Court, but also with our opinion in the
earlier appeal in this very case. After all, Weiss argued, that
opinion had rejected Loomis's argument that it should prevail on
standing as a matter of law. See Weiss I, 97 Mass. App. Ct. at
7.
11

of the independent contractor statute]' would not immunize

employers against enforcement." Chambers, 476 Mass. at 109.

For his part, Weiss argues that even if the timing of when

an intermediary entity was formed is a relevant factor for

determining whether a business relationship the employer forged

with it should be considered "legitimate," that should not, by

itself, be outcome determinative. Put differently, Weiss argues

that if a worker is able to make a case that an employer used an

intermediary entity to evade the protections offered by the

statute, the worker should not be barred from having a jury

reach the merits solely because the intermediate entity happened

to have been formed prior to the employer's pursuit of the

worker's services. That interpretation, he maintains, is more

consistent with the broad remedial purposes that the statute

serves. See Depianti, 465 Mass. at 620, quoting Batchelder v.

Allied Stores Corp., 393 Mass. 819, 822 (1985) ("remedial

statutes such as the independent contractor statute are

'entitled to liberal construction'"). And Weiss accurately

points out that while Chambers and subsequent cases do state

that standing exists when the employer "created and maintained"

the intermediary entity to evade the statute, they do not hold
12

that standing necessarily is lacking if that condition was not

satisfied.8

Even assuming that Weiss is correct as to the broad legal

principle, in light of the circumstances, his position is not

advanced as a practical matter. It is Weiss's burden to

demonstrate that the trial necessarily was infected with

reversible error and, for the reasons that follow, he cannot

meet that burden. Before turning to Weiss's specific arguments

regarding the verdict slip, we first examine the jury

instructions, which frame how the verdict slip is to be viewed.

The judge's instructions on standing were extensive,

encompassing two full pages of transcript. Even putting aside

that instructions are to be viewed as a whole, see Ventresco v.

Liberty Mut. Ins. Co., 55 Mass. App. Ct. 201, 206 (2002),

nothing in the instructions stated that Weiss had standing only

if Loomis created Eliassen and JoSol. The instructions

8 Loomis relies, in part, on a case that postdates Weiss I,
Jinks v. Credico (USA) LLC, 488 Mass. 691 (2021). In Jinks,
supra at 693, the workers were directly employed by a
subcontractor of the defendant. Along the way to ruling in the
defendant's favor, the court ruled that, as a matter of law,
there was insufficient evidence that the subcontractor had been
"set up by [the defendant] for the purposes of evading wage law
obligations." Id. at 698. While the analysis in Jinks arguably
provides some support for Loomis's legal arguments to us, there
are notable differences in context that prevent it from being
directly on point. For example, while the workers in Jinks
serviced the defendant's clients, the record established that on
a day-by-day basis, they worked directly for the subcontractor.
Id. at 693-694.
13

indicated that while the roles played by Eliassen and JoSol

raised a question about whether Weiss had standing, this was not

by itself preclusive, and the jury were required "to determine

under all of the factual circumstances presented whether Mr.

Weiss ha[d] met th[e] burden [of demonstrating his standing]."

The instructions provided two examples of where a worker would

have standing to bring a misclassification claim even if the

worker had nominally been employed by an intermediary firm. One

example was where the employer "created and maintained" the

intermediary to evade the statute, and the other was where the

employer required the worker to "set up" the intermediary.9

Although both examples involved situations where the employer

played a direct role in creating or requiring the creation of

the intermediary, nothing in the instructions stated that

standing was absent unless that condition were satisfied.10 To

9 The examples were drawn directly from case law. See
Jinks, 488 Mass. at 698; Chambers, 476 Mass. at 109.

10We note a small patent misstatement in both examples.
The language used there focused on whether the intervening firm
was a "legitimate business." In Chambers, the adjective
"legitimate" modifies "business-to-business relationship," not
"business." Chambers, 476 Mass. at 109. See also Jinks, 488
Mass. at 698 (on illegitimacy of "employment relationship").
This distinction potentially matters because even a "legitimate
business" presumably could participate in a business
relationship that was illegitimate. No objection to this
particular phrasing was preserved. Nor did Weiss object to the
fact that the verdict slip referred to "legitimate business-to-
legitimate business relationships."
14

the contrary, another passage in the instructions stated that

standing would exist where employers "use contractual

arrangements with third parties as an end run around the

statute" (emphasis added).

Put succinctly, Weiss prevailed in his efforts to have the

jury instructions incorporate his position that the pre-

existence of the intermediary entities did not bar his standing.

Accordingly, it is hardly surprising that on appeal, Weiss makes

only a limited challenge to the instructions. Specifically, he

claims error only with regard to some of the nonexclusive

factors that the judge invited the jury to consider during its

standing deliberations. Chambers includes a brief discussion of

such factors; for example, Chambers spoke approvingly of the

fact finder's being able to consider whether "the services of

the alleged independent contractor are not actually available to

entities beyond the contracting entity, even if they purport to

be so." Chambers, 476 Mass. at 109. As the transcript in the

case before us makes clear, the judge sought to take the

specific factors mentioned in Chambers and adapt them to the

facts here. Thus, she purported to incorporate the specific

factor just quoted, but in doing so substituted Eliassen for

"alleged independent contractor." Weiss objected to that

substitution on the ground that, in using the term "alleged

independent contractor," the Supreme Judicial Court plainly was
15

referring to the individual worker who was bringing the claim,

not the intermediary entity that nominally hired him. We agree

with Weiss's premise that whether the intervening entity

serviced clients other than the employer being sued was not one

of the factors that the Chambers court specifically endorsed in

its standing analysis. However, it does not follow that the

judge necessarily erred in instructing the jury that they could

consider that factor.11 Turning to the merits of that issue, we

discern no error in the judge's inviting the jury to consider

whether Eliassen serviced clients other than Loomis, or

otherwise existed independent of Loomis's relationship with

Weiss. While such considerations may not be dispositive on

their own, we agree with Loomis that they are highly relevant to

whether the relationship between a putative employer and a

staffing firm that it used was "legitimate," as opposed to one

that was being called upon to evade the statute. In sum,

because the jury instructions on standing in fact incorporated

11Nothing in Chambers suggests that the referenced
considerations -- which are drawn from a manual issued by the
Attorney General -- establish critical factors that must be
conveyed to the jury verbatim. To the contrary, the court
declared the factors "nonexhaustive" and, immediately after
referencing them, the court sought to distill them into what
might be described as a performance standard: "whether the
worker's use of the corporate form was at the worker's behest or
forced upon the worker by an employer in order to misclassify
[the worker]." Chambers, 476 Mass. at 109. In their final
paragraph, the jury instructions here incorporated that
performance standard almost word for word.
16

Weiss's position that the independent existence of Eliassen and

JoSol was not by itself preclusive, he is unable to demonstrate

error in those instructions.

We now turn back to Weiss's claims regarding the verdict

slip, which, as noted, are based on the fact that the judge

inserted Loomis's "created and maintained" language into the

verdict slip just before sending it to the jury. By

distinguishing between "business relationships" that were

"legitimate" from those where the corporate form was "created

and maintained" to evade the statute, that language could be

taken to suggest that Weiss was barred from demonstrating

standing solely because Eliassen and JoSol already existed when

Loomis contracted for his services. Thus, if viewed in

isolation, this language could be seen as being inconsistent

with Weiss's position that the independent existence of the

intermediaries was not by itself preclusive. However, as noted,

as a result of an inadvertent oversight, the portion of the

verdict slip that the jury were asked to complete retained

Weiss's favored "created or used" formulation. A verdict slip

is to be viewed in light of the attendant circumstances,

including the instructions the jury were given. Even in the

context of criminal cases, problems in the wording of a verdict

slip can be rendered inconsequential by proper instructions

which, after all, the jury are presumed to follow. See
17

Commonwealth v. Evans, 42 Mass. App. Ct. 618, 626-627 (1997)

(omission of language from verdict slip that crime was for

breaking and entering dwelling "with the intent to commit a

felony" held inconsequential where, in light of circumstances,

including proper jury instructions, there was "no likelihood

that the jurors could have been misled or confused by the

omission of the language"). As it materialized, any problem at

issue here is not a conflict between the verdict slip and the

jury instructions, but rather an arguable internal inconsistency

within the language of the verdict slip.12 Because we presume

that the jury followed the instructions they were given, see

Kelly v. Foxboro Realty Assocs., LLC., 454 Mass. 306, 314

(2009), this means that we presume they would have resolved that

inconsistency by following the instructions that they had been

given, which incorporated Weiss's legal position.

12Weiss does not complain that the verdict slip contained
an inconsistency, and, in any event, he invited that error when
he urged the judge not to correct the problem. To be sure,
Weiss preserved his objection to the "created and maintained"
language by making his opposition to that language abundantly
plain to the judge. However, his strategic decision to have the
"created or used" language also remain in the verdict slip had
the effect of undercutting his ability to claim prejudice. We
discern no inequity in this result: Weiss hoped that the jury
would use his "created or used" language and it may well be that
this is exactly what they did. Cf. Cowher v. Kodali, 283 A.3d
794, 804 (Pa. 2022) (plaintiff cannot claim error where
prejudice could not be determined based on form of verdict slip
that went to jury with his approval).
18

For related additional reasons, Weiss cannot establish that

he was prejudiced. We recognize that where a claim of

instructional error has been preserved, the cases indicate that

a new trial is warranted where the "result might have differed

absent the error" (citation omitted). Kelly, 454 Mass. at 313.

However, despite the use of the word "might," this test requires

more than a theoretical possibility that an error led to the

jury's ruling in Loomis's favor. We are confident that the

jury's verdict that Weiss lacked standing did not turn on the

fact that in one portion of the verdict slip, the words

"created" and "maintained" were joined by "and" instead of "or."

In this regard, we note that while Weiss presented sufficient

evidence to send the standing issue to the jury -- as this court

ruled in the earlier appeal -- Loomis's fact-based arguments

that Weiss lacked standing were always quite strong. With Weiss

by his own choice nominally employed by JoSol,13 an entity that

Weiss created without Loomis's involvement, and with Loomis's

contracting for Weiss's services through Eliassen, a staffing

firm that long had existed independent of Loomis, Weiss faced an

uphill battle on standing from the start.

13Weiss was given the option of being hired directly by
Eliassen and chose instead to operate as an independent
contractor through JoSol for reasons of his own and for his own
benefit.
19

In the end, any problem that Weiss has identified in the

wording of the verdict slip is simply too slender a reed to

support his claimed entitlement to a third trial. In the

context of criminal prosecutions, it often has been said that

"[a] defendant is entitled to a fair trial but not a perfect

one." Commonwealth v. Mienkowski, 91 Mass. App. Ct. 668, 678

(2017), quoting Commonwealth v. Graves, 363 Mass. 863, 872

(1973). The admonition applies with even more force to

litigants in civil cases.

Judgment affirmed.