Massachusetts Court Provides Guidance on Joint Employer Liability and the Scope of the Outside Salesperson Exemption 

From JDSupra, Christopher Kaczmarek and Stephen Melnick discuss a recent case in which the court said that the question of whether a company was a joint employer was determined by the “right to control” test and not the ABC test. Christopher and Stephen write:

In Jinks v. Credico (USA) LLC (March 31, 2020), Judge Kenneth Salinger in the Business Litigation Session of the Massachusetts Superior Court provided guidance on two important wage and hour issues.  First, the court concluded that the “right-to-control” test was the appropriate method for determining whether two companies were “joint employers” for purposes of the Massachusetts wage and hour laws.  Second, the court held that the Massachusetts Overtime Law and Minimum Wage Law had two separate tests for determining whether an employee was exempt as an outside salesperson, with the Minimum Wage Law requiring that the employee not make daily reports or visits to the employer’s office or plant in order to be exempt.


In this case, defendant Credico provided its clients with door-to-door sales services.  Credico subcontracted that work to other companies, including defendant DFW.  DFW engaged the plaintiffs to call on potential customers in person as door-to-door salespeople.  The plaintiffs subsequently sued both Credico and DFW, alleging that they were entitled to wages and overtime payments, as well as the mandatory awards of treble damages and attorneys’ fees available under the Massachusetts Minimum Wage Law and Overtime Law.

The Court Adopts the Right-to-Control Test

The first issue for the court was whether Credico could be held liable as the plaintiffs’ joint employer, along with DFW.  This was a significant threshold legal issue, given that the Massachusetts wage and hour laws neither define the term “employer” nor specify the circumstances in which two companies will constitute joint employers of the same employee.  Moreover, the Massachusetts appellate courts have not yet opined on this issue.

The plaintiffs argued that the court should apply the three-part “ABC” test set forth in the Massachusetts Independent Contractor Statute.  The court rejected this argument, noting that the Massachusetts Supreme Judicial Court has made clear that ABC test does not apply where the parties have neither an independent contractor nor an employment relationship.  In this case, it was undisputed that the plaintiffs did not provide services directly to, or have any direct relationship with, Credico.  Therefore, the court declined to apply the ABC test.

Instead, the court applied the right-to-control test traditionally utilized under common law. The court applied case law under the federal Fair Labor Standards Act, which looks to the totality of the circumstances to determine whether an alleged employer has the right to control, including whether the alleged employer: (1) had the power to hire and fire the employee, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.

The court then applied those factors to the evidence.  According to the court, the record demonstrated that Credico had no power to hire or fire DFW’s workers, did not supervise or control their work schedules or other conditions of employment, did not and had no power to establish the rate or method for paying DFW’s workers, and did not maintain employment records for those workers.  Accordingly, the court held that the plaintiffs failed to demonstrate that Credico had the right to control them.  Therefore, Credico was not their employer for purposes of the Massachusetts wage and hour laws, and the court dismissed all claims against Credico.


This decision offers direct guidance about joint employment issues under Massachusetts wage and hour law, as well as a clear explanation of the outside sales exemptions.  Although it was written by a respected judge, it is only a Superior Court decision, and therefore not binding precedent on other courts or agencies.

Read the full story at Massachusetts Court Provides Guidance on Joint Employer Liability and the Scope of the Outside Salesperson Exemption | Littler – JDSupra

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