J.E.D.I

HP’s new J.E.D.I. section is designed to highlight the people, companies and organizations that are implementing principles to further justice, equity, diversity and inclusion in their workplaces and communities.

The Diversity, Equity and Inclusion Challenge

by Edward Ransom

Diversity, equity and inclusion…we have all heard these terms the last few years, but what does it really mean to you and your firm? Are you already pursuing these lofty goals? Or are you still floundering in attempts to define how your firm will incorporate these objectives?

If so, your attempts are supported by recent studies which have shown that an increase in workplace diversity is a good business decision; that diverse teams simply become smarter. Working with people who are different will challenge your staff to overcome outmoded ways of thinking and sharpen their level of performance. But what are the best practices to achieve the diversity you may be seeking?

BosNOMA, the Boston Chapter of the National Organization of Minority Architects, may have a solution that will fit your organization. This month, BosNOMA is launching the Diversity, Equity, and Inclusion Challenge (DEI Challenge) as an initiative for architecture, engineering, construction, and related firms to voluntarily support measures to transform the diversity within their firms, and the AEC community, with a solution that is designed to be holistic, firm-wide, and data-driven.

NOMA has requested that all of its 34 chapters engage firms in their local areas to support this initiative. The intent is to foster a safe and positive environment for Black, Indigenous, and People of Color (BIPOC) within our industry, to encourage more minorities to enter the profession and to remain in it, ultimately improving the overall diversity of our industry as well as providing a clear path for BIPOCs to move toward leadership roles.

The challenge is based on voluntary engagement and it shall prioritize metrics, accountability, and actionable responses to requirements that are intended to provide a model by which participating firms can more easily work toward creating a professional environment, as well as a built environment, that supports racial justice, social responsibility, diversity, equity, and inclusion.

In committing to the BosNOMA DEI Challenge, participating firms acknowledge their pledge to voluntarily provide information on an annual basis on 14 specific requirements of the program. The overall purpose is to collect data and statistics that may be used by the participating firms, BosNOMA, and partner organizations to refine the program and develop policies that help participants to support the challenge going forward, to foster more representation by Black and other underrepresented people of color.

As a part of this challenge, BosNOMA shall: • Schedule an “intake” meeting with you and a DEI coordinator to collect baseline documentation and provide resources for implementation. • Provide resources and references as needed to support your firm’s progress on each action item. • List all participating firms on the

BosNOMA website as DEI Partners. • Conduct quarterly check-ins between participating firms and DEI coordinators to assess progress and provide support. • Collect metrics on an annual basis (calendar year) from each participant.

If you would like further information, or wish to be a participating firm or volunteer, please contact me at Edward. ransom@noma.net or northeastregion@ noma.net.

Edward Ransom, AIA, NOMA, CCM, LEED AP, BOC Lvl. 1 is deputy director for energy & sustainability at DCAMM and vice president, Northeast Region, at National Organization of Minority Architects.

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Trends and Hot Topics The FLSA Test Applies when Determining Whether an Entity is a Joint Employer, Not Massachusetts’ Independent Contractor Test

by Michelle M. De Oliveira and Michael P. Dickman

On Dec. 13, 2021, the Supreme Judicial Court of Massachusetts (SJC) held in Jinks v. Credico (USA) LLC that the Fair Labor Standards Act (FLSA) test applies when deciding whether an entity is a joint employer – not Massachusetts’ independent contractor test.

The plaintiff employees were salespersons directly retained by DFW Consultants, Inc. The defendant, Credico, is a client broker for independent direct marketing companies and it subcontracted with DFW to provide regional direct sales services for its national clients.

Credico and DFW entered into a 2015 services agreement through which DFW retained exclusive control over its labor and employment practices, including policies on wages, working conditions, and hiring.

Plaintiffs filed suit, alleging that Credico, as their joint employer, violated Massachusetts’ independent contractor statute and wage laws. Since Credico was not the plaintiffs’ “direct employer,” it would not ordinarily be liable for the plaintiffs’ independent contractor misclassification claim, unless it was a joint employer.

The Superior Court concluded that Credico was not a joint employer.

On appeal, plaintiffs argued that the SJC should apply the independent contractor statute test (the ABC test) to determine whether Credico was a joint employer. Under the ABC test, an individual who performs services is an employee (not an independent contractor), unless the following factors are met: • The individual is free from control and direction in connection with the performance of services, both under a contract for the performance of service and in fact; and • the service is performed outside the employer’s usual course of the business; and • the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

The SJC disagreed, holding that the FLSA (a model for Massachusetts’ wage laws) offers the appropriate test to determine whether an entity is a joint employer. Under the FLSA’s “totality of the circumstances” test, the relevant factors are whether the alleged employer: • had the power to hire and fire the employee; • supervised and controlled employees’ work schedules or conditions of employment; • determined the rate and method of payment; and • maintained employment records.

After adopting this standard, the SJC concluded that Credico was not a joint employer.

According to the SJC, using the independent contractor test “would be rather like using a hammer to drive in a screw: it only roughly assists the task because the hammer is designed for a different purpose.”

This case resolves what had been unsettled law in Massachusetts. Business entities should keep the FLSA test in mind when contracting with other entities and review those contracts with care to ensure that they are not running afoul of wage and hour laws. Employers with questions should consult with a Kenney & Sams employment attorney.

Michelle M. De Oliveira, Esq. is a partner, and Michael P. Dickman, Esq. is an associate at Kenney & Sams.

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