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

164 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP employee’s pay and when a business employs a worker who is more clearly employed by a third party. However, in June 2017, the WHD under the Trump Administration withdrew the AI. It published a new rule regarding joint employer status on January 16, 2020, and that rule became effective on March 16, 2020. The new rule (1) specifies that when an employee performs work for the employer that simultaneously benefits another person, that person will be considered a joint employer when that person is acting directly or indirectly in the interest of the employer in relation to the employee; (2) adopts the Bonnette factors to determine when a person is acting directly or indirectly in the interest of an employer in relation to the employee; (3) clarifies that an employee’s “economic dependence” on a potential joint employer does not determine whether it is a joint employer; and (4) specifies that certain contractual agreements and business practices, such as an employer’s franchisor or similar business model, do not make joint employer status more or less likely. 973 In response, the WHD under the Biden Administration published a new rule on July 31, 2021 to rescind the rule enacted under the Trump Administration. 974 This rule became effective on September 30, 2021. The DOL’s change in position is a reminder that the determination of joint employer status remains a hot-button issue. Further, it is not clear whether Massachusetts courts will consider the DOL’s shifting approach to joint employment under the FLSA when analyzing the issue under the state wage laws. Employers should be cautious when engaging the services of another’s employees and understand the possibility of joint employment under a more expansive test. XV. RETALIATION FORCOMPLAINTS REGARDINGWAGE AND HOUR VIOLATIONS An employer may not retaliate against an employee for exercising his or her rights under Massachusetts wage and hour law. 975 The employer can incur liability for retaliation even if the employee’s underlying wage and hour complaint has no merit. However, if the underlying claim is meritless, the employee must demonstrate that he or she acted on a good faith belief in making the complaint. 976 973 Se e ht tps://www.federalregister.gov/document s/2020/01/16/2019-28343/joint-employer-status-under-the-fair-labor-standards- act (last visited July 14, 2021) 974 Se e ht tps://www.federalregister.gov/document s/2021/07/30/2021-15316/rescission-of-joint-employer-status-under-the-fair- labor-standards-act -rule ( last visited September 27, 2021). 975 See M.G.L. ch. 149, § 148A and M.G.L. ch. 151, § 19. The FLSA also forbids retaliat ion, making it unlawful for an employer “ to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or inst ituted or caused to be inst ituted any proceeding under or related to this chapter . . . .” 29 U.S.C. § 215(a)(3). However, while oral complaint s made to a public employer may be sufficient grounds for a retaliat ion claim under the FLSA, it is unclear whether oral complaint s made to private employers qualify as protected act ivity. Kasten v. Saint-Gobain PerformancePlastics Corp. , 563 U.S. 1, 131 S. Ct . 1325, 1336, 179 L.Ed.2d 379 (2011) (declining to reach issue as to private employers). 976 Smith v. Winter Place, LLC, 447 Mass. 363, 364 n.4 (2006) (“viability [of a wage and hour retaliat ion claim] does not depend on the success of the underlying discriminat ion claim, so long as the plaint iff can prove that he ‘reasonably and in good faith