Luiz Thomaz Da Costa et al. 
Vanguard Cleaning Systems, Inc
Date October 2, 2017
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS'
CROSS MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS
MOTION FOR SUMMARY JUDGMENT
Kenneth J. Fishman, Justice of the Superior Court.
plaintiffs, Luiz Thomaz Da Costa and others, and the
defendant, Vanguard Cleaning Systems, Inc. ("
Vanguard" ), have filed cross motions for summary
judgment seeking a ruling on the plaintiffs' employment
classification status under the laws of Massachusetts and
Connecticut in connection with commercial cleaning work which
the plaintiffs claim they performed on behalf of Vanguard.
G.L.C. 149, § 148B; Conn. Gen. Stat. §
31-222(a)(1)(B). After hearing, and upon review and
consideration, the plaintiffs' cross motion for summary
judgment is ALLOWED, and Vanguard's cross motion
for summary judgment is DENIED.
undisputed facts, and any disputed facts viewed in the light
most favorable to the non-moving party, are as follows.
Additional facts are reserved for discussion
is a corporation headquartered in California that operates a
three-tier franchise system selling commercial cleaning
services. Vanguard sells licenses to use its name and
trademarked Vanguard Cleaning Systems in defined geographic
areas to regional master franchisees. Regional master
franchisees, in turn, enter into franchise agreements with
unit franchisees, which conduct commercial
cleaning. Vanguard receives four percent of
regional master franchisees' gross revenue, which
consists of payments for commercial cleaning and fees levied
on unit franchisees. Vanguard solicits business through
national sales bids, and offers quotes to prospective
customers on its website; Vanguard's website forwards
cleaning account leads to regional master franchisees.
master franchisees implement Vanguard's commercial
cleaning framework. Vanguard provides regional master
franchisees with extensive operating instructions, forms, and
templates. Vanguard authored the franchise agreements that
regional master franchisees and unit franchisees execute, but
is a non-signatory to these agreements. Vanguard also drafted
the franchise disclosure document, operations manual,
cleaning safety manual, and commercial cleaning information
manual. Additionally, Vanguard supplies regional master
franchisees with accounting software and templates, which
include franchise agreements and account acceptance forms.
franchisees must meet current and future standards outlined
in Vanguard's operations manual. Vanguard requires that
unit franchisees form independent entities to conduct
cleaning services. Vanguard prohibits unit franchisees from
billing client accounts for cleaning supplies; unit
franchisees must purchase their own supplies. Vanguard
imposes minimum standard service requirements, along with
detailed instructions on how to clean commercial spaces.
Vanguard also requires that unit franchisees attend a
mandatory training program, and emphasizes that unit
franchisees are subject to Vanguard's quality control
outlines a series of inspections and oversight methods in its
operations manual. For example, Vanguard representatives
routinely conduct room-by-room quality control inspections if
the client consents. Unit Franchise Operations Manual,
PL000259-000260. The Vanguard representative records
the client's concerns, looks for deficiencies on its own,
and notifies the unit franchisee of any deficiencies.
Id. Vanguard also conducts telephone and written
surveys, and communicates deficiencies with unit franchisees.
Id. Vanguard states that " good quality control
consists of carefully checking our own work (and the work of
our franchisee's employees) to be sure it meets OUR
supplies its account holders with Vanguard-branded logbooks
and characterizes them as " [t]he most important
communication tool we have." Id. at PL000244.
Unit franchisees " must check the logbook every visit to
see if the client has written a note" and, if they have,
the unit franchisee " must always write a response to
acknowledge that you are using the logbook, and you have
understood their comment or request." Id.
allows unit franchisees to pursue cleaning work unrelated to
current accounts. Unit franchisees must obtain express
permission to perform extra work for a current
account or else risk termination. Vanguard must grant express
approval to any unit franchisee advertisements regarding its
and in 2009, Vanguard executed master franchise agreements
with Ztico Inc. d/b/a Vanguard Cleaning Systems of Southern
New England (" Ztico" ), allowing Ztico to operate
as a regional master franchisee in Massachusetts and
Connecticut. The plaintiffs executed franchise agreements
with Ztico to receive cleaning work. The Massachusetts
plaintiffs, Geraldo Figueiredo and Sebastiao Matos, entered
into unit franchise agreements with Ztico on January 15, 2007
and August 21, 2007, respectively. The Connecticut
plaintiffs, Dominga Almonte and Rafael Abreu, entered into
unit franchise agreements with Ztico on June 13, 2008 and
March 5, 2013, respectively.
plaintiffs are immigrants who do not speak English
well, and believed their agreements were
with Vanguard; they were unaware Vanguard and Ztico were
separate entities, or that Ztico existed. The plaintiffs
created independent entities under which they operated while
cleaning for Vanguard. Other than Matos, who operated a
cleaning business prior to executing his franchise agreement,
the plaintiffs were instructed by a perceived Vanguard
representative to form independent entities.
plaintiffs filed this four-count class action complaint,
alleging misclassification as independent contractors under
Massachusetts law, G.L.C. 149, § 148B (Count I);
violations of the Wage Act, G.L.C. 149, § 148 (Count
II); misclassification as independent contractors under
Connecticut law, Conn. Gen. Stat. § 31-222(a)(1)(B)
(Count III); and illegal refund of wages for furnishing
employment under Connecticut law, Conn. Gen. Stat. §
31-71e and Conn. Gen. Stat. § 31-73 (Count IV). The
parties have agreed to defer class certification, and to
limit summary judgment to the four named plaintiffs who are
" test cases."  The parties filed cross motions for
summary judgment, seeking a ruling on the plaintiffs'
employment classification under the laws of Massachusetts and
Summary Judgment Standard
Summary judgment shall be granted when all material facts
have been established and the moving party is entitled to
judgment as a matter of law. Mass.R.Civ.P. 56(c);
Kourouvacilis v. General Motors Corp., 410 Mass.
706, 716, 575 N.E.2d 734 (1991). The moving party bears the
burden of affirmatively demonstrating the absence of a
triable issue. Pederson v. Time, Inc., 404 Mass. 14,
16-17, 532 N.E.2d 1211 (1989). The moving party may satisfy
this burden either by submitting affirmative evidence that
negates an essential element of the opposing party's
case, or by demonstrating that the opposing party has no
reasonable expectation of proving an essential element of his
case at trial. Flesner v. Technical Commc'ns
Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991). Once
the moving party establishes the absence of a triable issue,
the party opposing the motion must respond with evidence of
specific facts establishing the existence of a genuine
dispute of material fact. Pederson, 404 Mass. at 17.
Misclassification under Massachusetts and Connecticut Law
(Counts I and III)
Count I and Count III of the First Amended Class Action
Complaint, the plaintiffs allege that Vanguard misclassified
them as independent contractors, rather than employees, in
violation of G.L.C. 149, § 148B, and Conn. Gen. Stat.
§ 31-222(a)(1)(B) (collectively " Independent
Contractor Statutes" ).
Independent Contractor Statutes establish " a standard
to determine whether an individual performing services for
another shall be deemed an employee or an independent
contractor for purposes of our wage statutes."
Somers v. Converged Access, Inc., 454 Mass. 582,
588-589, 911 N.E.2d 739 (2009); accord, Standard Oil of
Conn., Inc. v. Adm'r, Unemployment. Comp. Act, 320
Conn. 611, 623, 134 A.3d 581 (2016). The Independent
Contractor Statutes were enacted " 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."
Depianti v. Jan-Pro Franchising Int'l, Inc., 465
Mass. 607, 620, 990 N.E.2d 1054 (2013) (citations omitted);
accord, Standard Oil, 320 Conn. at 616-17.
Generally, remedial statutes like the Independent Contractor
Statutes are entitled to liberal construction. Monell v.
Boston Pads, LLC, 471 Mass. 566, 575, 31 N.E.3d 60
(2015) (independent contractor statute is a remedial
statute); see Terra Nova Ins. Co. v. Fray-Witzer,
449 Mass. 406, 420, 869 N.E.2d 565 (2007) (statutes are
remedial where they address " misdeeds suffered by
individuals," rather than punish public wrongs); accord,
Sw. Appraisal Grp., LLC v. Adm'r, Unemployment Comp.
Act, 324 Conn. 822, 833, 155 A.3d 738 (2017). The
Independent Contractor Statutes presume that individuals
performing services are employees. G.L.C. 149, §
148B(a); Conn. Gen. Stat. § 31-222(a)(1)(B); Sebago
v. Boston Cab Dispatch, Inc., 471 Mass. 321, 327, 28
N.E.3d 1139 (2015); Sw. Appraisal Grp., 324 Conn. at
833. An employer may overcome this presumption and establish
that its presumptive employee is an independent contractor,
if it can establish that:
(1) the individual is free from control and direction in
connection with the performance of the service, both under
his contract for the ...