© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 125 IX. 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.727 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.”728 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.,729 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.730 The SJC rejected the plaintiffs’ argument that the Independent Contractor Statute (M.G.L. ch. 149, § 148B) should be used.731 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.732 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.’”733 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 control over the economic aspects of the working relationship.”734 These factors are referred to as 727 In Gallagher v. Cerebral Palsy of Mass., Inc., 92 Mass. App. Ct. 207 (2017), the Massachusetts Appeals Court acknowledged the common law definition of joint employment: whether a company “retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.” Id. at 214 (quoting 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 overtime. Id. 728 454 C.M.R. § 27.02. 729 488 Mass. 691 (2021). 730 Id. at 699-701. 731 Id. at 702-03. The Court explained that the ABC test of the independent contractor statute asks a question that differs from joint employment – namely, who, if anyone, controls the work other than the worker herself. It held that using the independent contractor statute to answer the joint employment question would be “‘like using a hammer to drive in a screw; it only roughly assists the task because the hammer is designed for a different purpose.’” Id. at 703 (quoting Browning-Ferris Indus. Of Cal., Inc. v. NLRB, 911 F.3d 1195, 1215 (D.C. Cir. 2018)). 732 Id. at 703. 733 Id. at 704 (citing Baystate Alt. Staffing, Inc. v. Herman, 163 F.3d 668, 675 (1st Cir. 1998)). 734 Id. at 705 (citing Baystate, 163 F.3d at 675-76). Note that the circuit courts of appeals are not uniform in their determination of joint employment under the FLSA. For example, the Second Circuit has adopted a different formulation of the test for joint employer relationships. See Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir. 2003). In Zheng, the Second Circuit addressed whether an apparel company was a joint employer of the contractors that assembled its garments by asking: (1) the extent to which the workers perform a discrete line-job forming an integral part of the putative joint employer’s integrated process of production or overall business objective; (2) whether the putative joint employer’s
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