18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 383 these reasons, the Supreme Judicial Court reversed the trial court’s order granting Defendant’s motion for judgment on the pleadings. Jinks, et al. v. Credico (USA) LLC, 2021 Mass. LEXIS 684 (Mass. Dec. 13, 2021). Plaintiffs, a group of door- to-door salespersons, filed a class action alleging that Defendants misclassified salespersons as independent contractors and thereby failed to pay them overtime compensation and minimum wages in violation of state wage & hour laws. Credico, a client broker for independent direct marketing companies, contracted with DFW Consultants, Inc. (“DFW) to provide regional door-to-door and other face-to-face sales services for Credico’s nationally based telecommunications and energy clients. Id . at *1-2. Plaintiffs were salespersons directly retained by DFW to work on various marketing campaigns in Massachusetts for Credico’s clients. Following discovery, Credico filed a motion for summary judgment, and the trial court granted the motion. On appeal, the Massachusetts Supreme Judicial Court affirmed the trial court’s ruling. The Supreme Judicial Court ruled that Credico could not be considered Plaintiffs’ joint employer, and that only DFW was the proper employer. The Supreme Judicial Court also determined that the correct test for analyzing whether Credico was Plaintiffs’ employer was not the ABC test, as Plaintiffs argued, but the test acknowledged under the Fair Labor Standards Act. Pursuant to that test, whether an entity was a joint employer of an individual was guided by a framework of four factors, including whether the company: (i) had the power to hire and fire the individual; (ii) supervised and controlled the individual’s work schedules or conditions of employment; (iii) determined the rate and method of payment; and (iv) maintained employment records. Id . at *4-5. The Supreme Judicial Court reasoned that Plaintiffs were salespersons directly retained by DFW and Plaintiffs offered no evidence to prove that Credico exercised the type of control over their employment necessary to conclude it was their joint employer. The Supreme Judicial Court opined that only DFW had the power to hire and fire Plaintiffs. Further, the Supreme Judicial Court observed that DFW had “exclusive control over its labor and employee relations policies, and its policies relating to wages, hours, or working conditions of its employees,” and had “the exclusive right to hire, transfer, suspend, layoff, recall, promote, assign, discipline, adjust grievances and discharge its employees.” Id . at *5. Accordingly, the Supreme Judicial Court ruled that in analyzing the totality of the circumstances, Plaintiffs failed to establish that Credico was their joint employer. For these reasons, the Supreme Judicial Court affirmed the trial court’s ruling granting Credico’s motion for summary judgement. Tam, et al. v. Federal Management Co., Inc. , 2021 Mass. App. LEXIS 1 (Mass. App. Jan. 6, 2021). Plaintiffs, two former property managers, filed a class action alleging that Defendant failed to provide overtime compensation in violation of Massachusetts state wage & hour laws. Plaintiff Raymond also alleged that Defendant terminated her in retaliation for complaining to management that she was overworked and underpaid. In response to Plaintiffs’ allegations, Defendant contended that Plaintiffs were exempt administrative employees who did not qualify for overtime compensation. During Plaintiff Tam’s deposition, she made several admissions supporting Defendant’s position that she was an exempt administration employee, such as her statement that her main responsibility was handling day-to-day property operations. Id. at *3. Defendant subsequently filed a motion for summary judgment, which the trial court granted. On appeal, Plaintiff Tam argued that Rule 30(e) permitted her to amend her deposition answers, and that her corrected deposition transcript created a disputed issue of material fact requiring the overturning of the grant of summary judgment. The Appeals Court noted, however, that Rule 30(e) only allows deponents to amend their deposition transcripts up to 30 days after the court reporter submits the transcript. Id. at *10. In this case, Plaintiff Tam admitted that she submitted her signed errata sheet nearly a year after receiving the deposition transcript, but nevertheless maintained that she should be allowed to amend her transcript “because her deposition was suspended, not terminated.” Id. The Appeals Court rejected this argument. It ruled that “the fact that a deposition nominally has been suspended does not mean that it necessarily ever will resume.” Id. at *11. The Appeals Court further reasoned that deponents must amend their transcripts in a timely manner so that litigation can proceed, and because Plaintiff Tam waited nearly a year to comply with Rule 30(e), the uncorrected transcript must remain as her deposition testimony. With respect to Plaintiff Raymond’s claims, the Appeals Court held that her wage & hour claims were properly dismissed because they were asserted after the required two-year statute of limitations. Moreover, the Appeals Court agreed with the trial court’s finding that Plaintiff “Raymond’s complaints were ‘far too general to constitute protected activity for purposes of her retaliation claim.’” Id. at *17-18. The Appeals Court came to this conclusion because Plaintiff Raymond failed to show that she ever told Defendant that it misclassified her as exempt or that