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the Supreme Judicial Court decided to adopt the federal Trump-era standard even though the Biden Administration repealed the standard in July (and has yet to propose a replacement).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 should not be mechanically or blindly applied, and no factor is dispositive. Instead, they guide the framework, and usually capture the relevant circumstances of the relationship. This aligns with the former standard under the FLSA: the Court points out the state’s wage and overtime laws are modeled after the FLSA, so logically the tests for joint employer should be consistent.

The Plaintiffs had urged the Court to use Massachusetts’ rigid independent contractor standard to determine joint employer status. In the instances where that statute applies, an individual performing service is considered an independent contractor if three factors are established to rebut the presumption of employment: “(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and (2) the service is performed outside the usual course of the business of the employer; and, (3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.” See Mass. Gen. Laws Ann. ch. 149, § 148B.

The Court rejected this “ABC” test, holding that it is aimed at answering a different question than when evaluating joint employment. A test for joint employment must determine if an individual, controlled by one entity, is also subject to control by another. In contrast, a test for independent contractor status must be designed to determine if anyone, besides the worker himself, is controlling the worker.

To explain its holding, the Court notes that the state wage and overtime statutes do not define “employer,” but the term is clearly meant to encompass joint employment, based on traditional principles of statutory construction and common law. When the Legislature fails to define a term, the Court must assume the Legislature intended the term to have the common law definition, which has long included joint employer in the definition of employer. The Court also notes that the broad remedial nature of employment laws allows a more liberal construction.

While this holding somewhat limits the entities that can be considered joint employers, compared to the independent contractor standard, businesses must still be wary of the joint employment possibility because the “totality of circumstances” standard is an uncertain and subjective one. The holding is further complicated by the current ambiguity about the status of the FLSA standard, and compliance with federal regulations will not ensure compliance in Massachusetts.

Proskauer’s Wage and Hour Group is comprised of seasoned litigators who regularly advise the world’s leading companies to help them avoid, minimize, and manage exposure to wage and hour-related risk.  Subscribe to our wage and hour blog to stay current on the latest developments.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.