SUZANNE E. CAREY, personal representative, 
GATEHOUSE MEDIA MASSACHUSETTS I, INC.
Heard: September 14, 2017.
action commenced in the Superior Court Department on
September 22, 2011.
for summary judgment were heard by Angel Kelley Brown, J.;
the entry of separate and final judgment was ordered by her;
and a motion for postjudgment relief was heard by her.
W. Batten for the defendant.
W. Simpson, Jr., for the plaintiff.
J. Caruso & Robert J. Ambrogi, for Massachusetts
Newspaper Publishers Association, amicus curiae, submitted a
Present: Green, Sullivan, & Sacks, JJ.
GateHouse Media Massachusetts I, Inc. (GateHouse), publisher
of the Patriot Ledger newspaper, appeals from a separate and
final judgment under Mass.R.Civ.P. 54(b), 365 Mass. 821
(1974), declaring that David King, who had delivered the
Patriot Ledger by automobile to some of its subscribers, was,
under G. L. c. 149, § 148B (§ 148B),
GateHouse's employee rather than an independent
contractor. Gatehouse also appeals from the denial of its
motion for relief from the rule 54(b) judgment, which
asserted that the relevant portion of § 148B is
preempted by the Federal Aviation Administration
Authorization Act of 1994 (FAAAA), codified at 49 U.S.C.
§ 14501(c)(1). We affirm.
recount certain undisputed material facts from the summary
judgment record, reserving for later discussion the details
of GateHouse's contract with King. GateHouse, a
subsidiary of New York-based GateHouse Media, "publishes
and distributes" a variety of daily and weekly
newspapers within Massachusetts. Gatehouse describes itself
as a publisher and distributor of publications in its
"Wholesale Agreements" with newspaper delivery
drivers such as King. GateHouse employs a sales and
advertising department, which works to increase circulation
and advertising revenue. Among GateHouse's newspapers is
the Patriot Ledger, published on all five weekday afternoons
and on Saturday mornings.
distributes the Patriot Ledger out of a distribution center
in Braintree, employing supervisors, district managers,
distribution managers, and others to manage that process.
GateHouse has three main distribution methods. First, to
distribute the newspaper to residential and business
subscribers, GateHouse enters into agreements with individual
carriers,  whom it classifies as independent
contractors. The carriers are required to buy copies of the
newspaper from GateHouse at wholesale rates, for resale and
distribution within delivery areas designated by GateHouse.
Second, GateHouse hires unionized employees to distribute
bulk quantities of the newspaper to various types of stores,
where they are resold at retail. Third, GateHouse reaches
some customers through online publishing.
became a carrier for GateHouse in 2009, using his own
automobile to deliver up to 250 copies of the Patriot Ledger,
six days per week, in the Weymouth area. His contract was
terminated in 2011, apparently by GateHouse, for reasons not
stated in the record.
then filed this action in Superior Court, asserting that
GateHouse had misclassified him as an independent contractor
rather than an employee under § 148B. He also asserted
claims -- dependent on his being an employee under §
148B -- that GateHouse had deducted
unauthorized charges and fees from its payments to him, in
violation of G. L. c. 149, §§ 148 and 150; failed
to pay him a minimum wage, in violation of G. L. c. 151,
§ 1; and violated his rights under the tip-sharing
statute, G. L. c. 149, § 152A. He also asserted an
unjust enrichment claim. King sought to represent, and later
obtained certification of, a class consisting of all
individuals who had signed a written contract to deliver the
Patriot Ledger and had provided delivery services under those
contracts, during the "class period."
cross motions for summary judgment limited to the
misclassification claim, the judge ruled in July, 2014, that
under § 148B, King was an employee, rather than an
independent contractor. She based her ruling on
GateHouse's inability to meet its burden of proving that
the service furnished by King was "performed outside the
usual course of the business of the employer, " as is
required under prong two of § 148B's three-prong
test. See Somers v. Converged Access, Inc., 454
Mass. 582, 588-589 (2009), citing Athol Daily News v.
Board of Review of the Div. of Employment &
Training, 439 Mass. 171, 175 (2003) (Athol Daily
News), and its interpretation of "nearly identical
language in G. L. c. 151A, § 2." The judge
therefore did not decide whether GateHouse could meet its
burden under prongs one and three. After an additional
sixteen months of motion practice over individual damages,
prejudgment interest, and class certification, the parties
moved for, and in November, 2015, the judge ordered, entry of
a separate and final judgment, under Mass.R.Civ.P. 54(b), on
the misclassification claim. GateHouse appealed.
the appeal was docketed in this court in August, 2016,
GateHouse sought and obtained a stay of appellate proceedings
and leave to file a motion for relief from judgment in the
trial court. The basis for GateHouse's motion was that
two recent Federal appellate decisions had held prong two of
§ 148B to be preempted, as to certain delivery drivers,
by a section of the FAAAA, codified at 49 U.S.C. §
14501(c) (1), concerning motor carriers' transportation
of property. See Schwann v. FedEx Ground Packaging Sys.,
Inc., 813 F.3d 429 (1st Cir. 2016) (Schwann);
Massachusetts Delivery Assn. v. Healey, 821
F.3d 187 (1st Cir. 2016) (Massachusetts Delivery
Assn.). GateHouse asked that the rule 54(b) judgment be
vacated so that it could assert a similar preemption defense.
In December, 2016, the judge denied the motion on the ground,
among others, that GateHouse had waived the issue by not
asserting the preemption defense in its answer or summary
judgment motion.GateHouse's appeal of this ruling
was consolidated with its appeal of the rule 54(b) judgment
on the misclassification issue.
Usual course of business.
purpose and operation of § 148B's three prong
test have been recently and thoroughly
reviewed in Sebago v. Boston Cab Dispatch, Inc., 471
Mass. 321 (2015) (Sebago), and Chambers v. RDI
Logistics, Inc., 476 Mass. 95 (2016)
(Chambers), we proceed directly to the question
whether GateHouse has proven under prong two -- as it must to
defeat King's claim of employee status -- that King
performed newspaper delivery services "outside the usual
course of the business" of GateHouse. G. L. c. 149,
§ 148B(a)(2), as appearing in St. 2004, c. 193, §
26. No single test controls this inquiry, so we consider
several factors previously held relevant.
the same question arose in Athol Daily News, under
the usual course of business portion of the closely-related
three-prong employment test of G. L. c. 151A, § 2. 439
Mass. at 175, 178-179. In addressing that question, albeit
briefly, the Supreme Judicial Court observed that the manner
in which a business defines itself is relevant to determining
its usual course of business. Id. at 179. "In
light of the fact that the News itself defines its business
as 'publishing and distributing' a daily newspaper,
we agree that the carriers' services are performed in
'the usual course of [the News's]
business.'" Ibid. See Sebago, 471
Mass. at 333 (stating, in a § 148B case, "We have
recognized that a purported employer's own definition of
its business is indicative of the usual course of that
business"); Id. At 335 (analyzing how various
defendant businesses advertised and otherwise held themselves
describes its business as "[n]ewspaper
[p]ublishing" in its annual corporate filing with the
Secretary of the Commonwealth, and describes itself as a
publisher and distributor in its agreements with delivery
drivers. This description is notable because, even aside from
its use of the term "distribute, " GateHouse
acknowledges that it is a "publisher, " and to
"publish" means, among other things, "to place
before the public (as through a mass medium);
DISSEMINATE." Webster's Third New International
Dictionary 1837 (2002). A newspaper ...