Jinks v. Credico (Massachusetts 12/13/2021) [PDF] is one more court case trying to set up the rules for deciding whether an entity is a joint employer of an individual, and Massachusetts opted for the FLSA test.

Plaintiffs were salespersons directly retained by DFW Consultants, an entity with which Credico subcontracted to provide regional direct sales services for its national clients. They claimed that Credico violated the independent contractor statute (G. L. c. 149, § 148B) by misclassifying them as independent contractors rather than employees, and that it violated the wage laws. The trial court granted summary judgment to Credico; the Massachusetts Supreme Judicial Court affirmed.

The court held that the statute (G. L. c. 149, § 148B) which sets forth the standard to classify an individual as an employee or an independent contractor for purposes of the minimum wage and overtime statutes does NOT establish the standard to determine whether an entity is that individual's joint employer for purposes of those laws. The court said:

"Instead, we borrow the test applied to determine joint employer status under the Fair Labor Standards Act (FLSA), from which the Massachusetts wage laws derive. Pursuant to that test, whether an entity is a joint employer of an individual is determined by considering the totality of the circumstances of the relationship between the individual and the entity, guided by a framework of four factors: whether the entity (1) had the power to hire and fire the individual, (2) supervised and controlled the individual's work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records."

"The record, when considered in view of the aforementioned factors as a whole, does not support the conclusion that the plaintiffs had a reasonable expectation of proving that Credico exercised the type of control over their employment necessary to conclude it was their joint employer."