126 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP the Bonnette factors, because the framework comes from a decision of the Ninth Circuit of the same name.735 Applying these factors, the SJC held that the defendant was not a joint employer of the plaintiffs.736 In June 2024, the Massachusetts Appeals Court interpreted the Jinks joint employment “totality of the circumstances” test broadly, finding that a management company and a car dealership were joint employers for purposes of Massachusetts wage and hour laws.737 Among the dispositive facts, the Court repeatedly cited that the management company drafted the employee handbook applicable to the dealership and provided human resources and payroll services to the dealership.738 The Court concluded that these facts demonstrated that the management company “exercised substantial control over the conditions of [plaintiff’s] employment.”739 It should be noted that the DOL’s test for joint employment under the FLSA is in flux and has varied depending on which political party is in power.740 In January 2016, the DOL’s Wage & premises and equipment were used for the work; (3) the extent of the putative employees’ work for the putative joint employer; (4) the permanence or duration of the working relationship between the workers and the putative joint employer; (5) the degree of control exercised by the putative joint employer over the workers; (6) whether responsibility under the contract with the putative joint employer passed “without material changes” from one group of potential joint employees to another; and (7) whether the workers had a “business organization” that could or did shift as a unit from one putative joint employer to another. Id. at 68. The DOL has addressed wage violations resulting from joint employer relationships as a species of independent contractor misclassification—in effect, the joint employer treats the employee as a contractor whose services are obtained through another entity. As part of its focus on independent contractor misclassification, the DOL has also ramped up enforcement in joint employer situations. See DOL WHD Press Release, US Labor Department obtains joint employment judgment ordering DirecTV to pay $395K in back wages and damages to 147 cable installers in Washington (Oct. 22, 2015) (describing enforcement action finding that DirecTV was a joint employer of installers and, hence, responsible for various FLSA violations), available at https://www.dol.gov/newsroom/releases/whd/whd20151022-0 (last visited Mar. 6, 2025). 735 See Jinks, 488 Mass. at 704; Baystate, 163 F.3d at 675 (explaining that the four factors were developed in Bonnette v. Cal. Health and Welfare Agency, 704 F.2d 1465 (9th Cir. 1983)). 736 Jinks, 488 Mass. at 707. 737 Tran v. Jennings Rd. Mgmt. Corp., No. 23-P-780, 2024 WL 2966894, *4 (Mass. App. June 13, 2024). 738 Id. at *4-6. 739 Id. at *6. 740 A similar trend occurred in connection with the National Labor Relations Board’s treatment of joint employment. In August 2015, the Obama NLRB expanded the definition of joint employment for purposes of federal labor law by stating a new test. See Browning-Ferris Indus. of Cal., Inc., 362 NLRB No. 186 (2015), reversed in part by Browning-Ferris Indus. of Cal., Inc. v. NLRB, No. 911 F.3d 1195 (D.C. Cir. 2018). Under that joint employer test, the putative joint employer had to possess or share actual, direct control over essential employment terms. In expressly overruling that prior precedent, the NLRB found that two or more entities will be considered “joint employers” if both exercise either the actual or potential authority to control the workforce. The NLRB noted that “right to control, in the common-law sense, is as probative of joint-employer status, as is the actual exercise of control whether direct or indirect.” Id. at 2. However, on February 26, 2020, the Trump NLRB issued a rule (the “2020 Rule”) restoring the prior joint employer test focused on actual control. See https://www.federalregister.gov/documents/2020/02/26/202003373/joint-employer-status-under-the-national-labor-relations-act (last visited Mar. 6, 2025). The 2020 Rule, which went into effect on April 27, 2020, specified that a business is a joint employer of another employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment. The 2020 Rule also made clear that joint employer status cannot be based solely on indirect influence or a contractual reservation of a right to control that has never been exercised. In October 2023, the Biden NLRB issued a rule (the “2023 Rule”) largely reestablishing the Obama NLRB standard of joint employment, holding that an entity could be considered a joint employer if it exercises sufficient “direct,” “indirect” (e.g., by directing an intermediary service provider’s relationship with the provider’s employees) and/or “reserved” (e.g., potentially controlling employment terms of a service provider’s employees through a reservation of contractual rights) control over one or
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