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With the ABC test, employers have questioned whether a worker, in a misclassification lawsuit, must meet an initial threshold hiring entity test before the employer is expected to establish the ABC test to prove independent contractor status.
On December 13, 2021, in Jinks v. Credico LLC, the SJC held that the independent-contractor statute’s ABC test does not apply and instead adopted the Fair Labor Standards Act’s FLSA totality of the circumstances approach to joint employment.
The Massachusetts Supreme Judicial Court issued its decision determining that the Massachusetts Independent Contractor Statute, G.L. c. 149, § 148B is not the applicable standard to determine whether an entity is a joint employer.
Among the many issues arising from misclassification is potential liability under federal and state minimum wage and overtime laws. As the laws continue to change and develop, so do the risks to contracting entities.
Under the AB 5-enhanced version of the ABC Test, a worker is presumed to be an employee, unless the hiring entity can establish: free from the control of the hiring entity, performs work that is outside the usual course of the hiring entity’s business, independent trade.