## Facts

- A janitorial franchising system used a three-tier structure: a national franchisor granted regional rights to master franchisees, who sold unit franchises to individuals performing cleaning services.
- The plaintiff, a unit franchisee, contracted with a regional master franchisee but had no direct contract with the national franchisor.
- Unit franchisees were classified as independent contractors under the system.
- The plaintiff brought a putative class action alleging worker misclassification and related wage-law violations under Massachusetts wage statutes, including the Independent Contractor Statute, Mass. Gen. Laws ch. 149, § 148B.
- The federal district court certified questions of Massachusetts law to the state high court concerning administrative filing requirements, franchisor vicarious liability, and whether a direct contract is required for § 148B liability.

## Issues

1. Whether a plaintiff’s failure to file a wage-law complaint with the Attorney General before suit deprives a court of jurisdiction over claims under Massachusetts wage statutes.
2. How the common-law “right to control” test for vicarious liability applies in a franchisor–franchisee relationship.
3. Whether a defendant may be liable for misclassification under Mass. Gen. Laws ch. 149, § 148B without a direct contract for services between the worker and the defendant.

## Decision

- The court held that failure to file a complaint with the Attorney General before initiating suit does not deprive a court of jurisdiction if the Attorney General is notified during the pendency of the action and the statutory notice purpose is not substantially impaired.
- The court held that a franchisor is vicariously liable for a franchisee’s conduct only when the franchisor controls or has the right to control the specific policy or practice that caused the alleged harm.
- The court held that a direct contract between the worker and the defendant is not a required element of a misclassification claim under § 148B; liability may exist even absent privity.
- A justice concurred in part and dissented in part, disagreeing with the conclusion that § 148B imposes potential liability without a contractual relationship between the worker and the alleged employer.

## Legal Principles

- The Attorney General filing requirement in Mass. Gen. Laws ch. 149, § 150 functions as a procedural notice mechanism rather than a jurisdictional bar when notice is provided during litigation and statutory purposes are not materially thwarted.
- In the franchise setting, vicarious liability turns on control (or the right to control) of the particular policy or practice alleged to be wrongful, not merely general brand or system standards.
- Mass. Gen. Laws ch. 149, § 148B does not require a direct contract between the worker and the alleged employer; the statute’s application depends on the substantive relationship and the employer’s inability to satisfy the statutory test for independent-contractor status.

## Conclusion

The court clarified that wage-law suits are not jurisdictionally barred by a pre-suit failure to notify the Attorney General if notice is provided during the case, limited franchisor vicarious liability to situations involving control over the specific harmful practice, and held that § 148B misclassification claims may proceed even without a direct service contract between the worker and the alleged employer.


Depianti v. Jan-Pro Franchising Int’l, Inc., 465 Mass. 607, 990 N.E.2d 1054 (2013)