One rarely looks to Massachusetts for a glimmer of hope on labor and employment issues, but if oral argument in a case before the Massachusetts Supreme Judicial Court is an indicator of outcome (there is no such guarantee), the Court may reject using Massachusetts’ ABC test in the joint employer context. In Jinks v. Credico, plaintiffs allege the trial court erred when it applied a “right to control” test to determine whether Credico was a joint employer along with a business it contracted with. Plaintiffs further argue that Massachusetts’ Independent Contractor Law – a restrictive ABC test – should determine whether Credico is an employer. During oral argument in early October, several justices were skeptical, suggesting it would be unworkable to apply the ABC test to determine whether any entity farther up the contracting chain is an employer of a worker who is one or multiple steps removed.

Since the California Supreme Court’s decision in Dynamex, California courts have grappled with application of a similar ABC test in joint employment cases. While there have been several state court appellate decisions rejecting the ABC test in California, a favorable decision from the Massachusetts high court would be a welcome development.