Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

162 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP of up to two years in jail and fines of up to $50,000, and civil penalties of up to $25,000 per violation. 961 XIV. JOINT EMPLOYMENT Until recently, Massachusetts appellate courts had not addressed the circumstances in which two or more entities may be held jointly liable for wage violations. 962 The term “employer” is defined for purposes of Massachusetts overtime and minimum wage as “[a]n individual, corporation, partnership or other entity, including any agent thereof, that engages the services of an employee or employees for wages, remuneration or other compensation.” 963 This definition does not expressly exclude the possibility that an employee may have more than one employer, and the Massachusetts Attorney General has sometimes sought to hold more than one entity liable for alleged minimum wage violations under state law. In Jinks v. Credico (USA), Inc. , 964 the SJC addressed when an entity other than the nominal employer of an individual could be jointly liable for wage and hour violations. The SJC first held that the Commonwealth’s wage laws included the concept of joint employment and then assessed the appropriate standard for determining joint employment status. 965 The SJC rejected the plaintiffs’ argument that the independent contractor statute (M.G.L. ch. 149, § 148B) should be used. 966 Instead, the SJC held that whether an entity is a joint employer under state wage laws should be determined by the test used under the FLSA. 967 Under that test, joint employment is determined by examining the totality of the circumstances of the parties’ relationship, guided by four factors: “‘whether the alleged employer (1) had the power to hire and fire the employees; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.’” 968 The first two of these factors address the putative joint employer’s “control over the nature and structure of the working relationship,” while the second two factors address “the extent of a putative employer’s 961 M.G.L. ch. 149, §§ 27C(a)(1), 159C. 962 In Gallagher v. Cerebral Palsy of Mass., Inc. , 92 Mass. App. Ct . 207 (2017), the Massachuset t s Appeals Court acknowledged the common law definit ion of joint employment: whether a company “ retained for it self sufficient cont rol of the terms and condit ions of employment of the employees who are employed by the other employer.” Id. at 214 (quot ing Commodore v. Genesis Health Ventures, Inc. , 63 Mass. App. Ct . 57, 62 (2005)). However, the Appeals Court did not address under what circumstances that test would apply to claims under the Wage Act or for overt ime. Id. 963 454 C.M.R. § 27.02 964 2021 WL 5872357 (Dec. 13, 2021). 965 Id . at *6-*7, 966 Id . at *7-*8. The Court explained that the ABC test of the independent cont ractor statute asks a quest ion that differs from joint employment – namely, who, if anyone, cont rols the work other than the worker herself. It held that using the independent cont ractor statute to answer the joint employment quest ion would be “ ‘like using a hammer to drive in a screw; it only roughly assist s the task because the hammer is designed for a different purpose.’” Id . at *8 (cit ing Browning-Ferris Indus. of Cal., Inc. v NLRB , 911 F.3d 1195, 1215 (D.C. Cir. 2018)). 967 Id . at *8. 968 Id . (cit ing Baystate Alt. Staffing, Inc. v. Herman , 163 F.3d 668, 675 (1st Cir. 1998)).