Legal Question in Business Law in Massachusetts

Are we Employee's or tenants?

My brother and I lease a kitchen at a local restaurant, we run the food the landlord runs the alcohol sales. The landlord owns the restaurant license, the liqour license, and the common victualler license. We simply have a business certificate from the town. We got into a little pickle when the landlord couldn't find someone to cover himself when he was sick last year (11/31) so My brother volunteered since he had all necessary certifications. Unfortunatly someone was arrested that night at 3am for DUI but they left our establishment at 12 so that was dropped. Now the license commision is saying it was an illegal transfer of license because my brother didn't get paid by the landlord since he was already here selling the food it wasn't a huge inconvience so we didn't even think about it, and they gave us a 6 day suspension. The landlord can appeal within 5 days of today 4/16/09. My question was that since he owns the restaurant and common victualler license are we technically some kind of employee of his? Secondly to see that this problem does not happen again could he pay us a salary of $1 a year to be employee or would we have to also be part of his corp.?


Asked on 4/16/09, 6:50 pm

3 Answers from Attorneys

Re: Are we Employee's or tenants?

You are not employees. The owner could employ you on a part-time basis to cover for him. He should pay you at least minimum wage just so things do not violate the wage and hour act. His loss of $60-70 for the night should not be a real issue for him, since if he does not make at least $70 from the bar a night he should not be open. If you want to pay him for helping you or covering for you from time to time, that is OK too.

I am not sure you can prepare food and sell it on your own without the food license being in your name or at least authorized to act under it. I would quitely double check that. If you are selling food under his license, be careful as to who is paying the sales taxes etc.

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Answered on 4/16/09, 6:59 pm
JOHN TATOIAN LAW OFFICE OF JOHN A. TATOIAN ESQ.*Licensed Only in Massachusetts

Re: Are we Employee's or tenants?

The question of whether an individual is an employee is very fact specific and involves the following factors:

1)principal's right to control agent's means, manner & method of performing tasks;

2)whether agent is required to work on principal's premises;

3) whether agent can market his/her services to other busines entities;

4) whether agent is required to work a set schedule;

5) whether agent is paid on a set schedule;

6) whether agent is compensated based on the time worked or the task accomplsihed;

7) whether principal witholds taxes from agents pay;

8) whether principal maintains business insurance on agent;

9) whether agent has a specialized skill or knowledge with respect to the task he/she is performing;

10) whether agent is provided necessary tools & equipment to accomplish tasks assigned;

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Answered on 4/23/09, 12:42 am
henry lebensbaum Law Offices of Henry Lebensbaum (978-749-3606)

Re: Are we Employee's or tenants?

Technically you are not employees, but you should absolutely get in touch with a lawyer to walk you through this problem. There may be appealable issues. Do not wait too long - time is critical.

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Answered on 4/18/09, 11:03 am


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