On December 13, 2021, the highest state court in Massachusetts ruled that the proper test for determining joint employer status under the state’s wage and overtime statutes is the “totality of the circumstances” test formerly used under the Federal Fair Labor Standards Act (“FLSA”), and not the more restrictive test of Mass. Gen. L. c. 149, §148B. Notably, the Supreme Judicial Court decided to adopt the federal Trump-era standard even though the Biden Administration repealed the standard in July (and has yet to propose a replacement). The Court rejected the state’s independent contractor test as the standard for joint employer status, finding it “would be rather like using a hammer to drive in a screw: it only roughly assists the task because the hammer is designed for a different purpose.” See Jinks v. Credico (USA) LLC, No. SJC-13106, 2021 WL 5872357 (Mass. Dec. 13, 2021).
Following this ruling, whether an entity is considered a joint employer under Massachusetts wage and overtime laws (see Mass. Gen. Laws Ann. ch. 151, §§ 1 and 1A) will be “determined by considering the totality of the circumstances of the relationship between an individual and the entity, guided by 4 factors. Whether the entity:
Had the power to hire and fire the individual
Supervised and controlled the individual’s work schedules or conditions of employment
Determined the rate and method of payment, and
Maintained employment records.”
See Jinks v. Credico (USA) LLC, at *1.
The four factors...
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