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31 Mass. App. Ct. 948

Benoit v. Landry, Lyons & Whyte Co.

Massachusetts Appeals Court

Decided November 15, 1991

Massachusetts Appeals Court · decided 1991-11-15

Key passage — most relied on by later courts

“The effect of this definition is to require that the services covered by the [act] be those which are `offered generally by a person for sale to the public in a business transaction, not those services sold by an employee to an employer within the same organization.'”

quoted by 1 later decision, including 2000 Conn. Super. Ct. 10917 - Feen v. Benefit Plan Administrators, Inc., No. 406726 (Sep. 7, 2000)

“the rationale of Manning [v. Zuckerman] require[d] the conclusion that a real estate salesman licensed under § 87RR is not engaged in the conduct of any trade or commerce” within the meaning of section 11 because they are not”

quoted by 1 later decision, including 367 F. Supp. 2d 122 - Speakman v. Allmerica Financial Life Ins. & Annuity Co.

Applies 29 U.S.C. § 201 (American Samoa Labor Standards Amendments of 1956)

Relies on Manning v. Zuckerman · Riseman v. Orion Research Inc. · Weeks v. Harbor National Bank

Good law ✅— No negative treatment on recordhow we know

Decided 1991-11-15

How this case has been cited

Cited by 13 later decisions — most recently August 2023

5 federal appellate · 2 district · 3 state decisions

801991200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Manning v. Zuckerman, 388 Mass. 8, 10-13 (1983), held that “the remedies of G. L. c. 93A, § 11, are not available to employees in disputes against their employers, which arise from the employment relationship.” Weeks v. Harbor Natl. Bank, 388 Mass. 141 144 (1983). The rationale was that the employment relationship precluded the “conduct of any trade or commerce” by the employee. See Riseman v. Orion Research, Inc., 394 Mass. 311, 313 (1985). More particularly, where services are involved, § 1(6) of c. 93A, as appearing in St. 1972, c. 123, requires an “offering for sale” of such services. The effect of this definition is to require that the services covered by c. 93A be those which are “offered generally by a person for sale to the public in a business transaction, not those services sold by an employee to an employer within the same organization.” Manningv. Zuckerman, supra at 13.

¶2In this case, the written agreement between the plaintiff, a licensed real estate salesman, and the defendant, a licensed'real estate broker, see G. L. c. 112, § 87RR, provided that the plaintiff “is an Independent Contractor and not the Company’s employee . . . [and that] the parties hereto are and shall remain independent contractors bound by the provisions hereof.” The dispute between them has to do with the deliberate and wilful failure (so the judge found) of the defendant to pay the plaintiff amounts due him for commissions earned. After a bench trial, the judge ruled that even if the plaintiff is an independent contractor, he is not entitled to the remedies provided by c. 93A. We affirm.

¶3General Laws, c. 112, § 87RR, as amended by St. 1978, c: 357, § 1, provides that “/n]o salesman may conduct or operate his own real estate business nor act except as the representative of a real estate broker who shall be responsible for the salesman and who must approve the negotiation and completion by the salesman of any transaction or agreement . ... No salesman shall be affiliated with more than one broker at the same time nor shall any salesman be entitled to any fee, commission or other valuable consideration or solicit or accept the same from any person except his licensed broker. . .” (emphasis added).

¶4Whatever may be the consequences of independent contractor status elsewhere in the law, see, e.g., Walsh, A Judicial Guide to Labor and Employment Law 221 (1990) (discussing independent contractor status under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.), the rationale of Manningrequires the conclusion that a real estate salesman licensed under *949§ 87RR is not engaged in the conduct of any trade or commerce even if the salesman is not the broker’s"employee. Section 87RR prohibits a salesman from operating his own real estate business and from receiving payment for his services from anyone except the single broker with whom he or she is affiliated. Chapter 93A is unavailable to the plaintiff.

Gary A. Ensor for the plaintiff.John F. Soja for the defendant.

¶5Judgment affirmed.

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