A personal care attendant provided care for an elderly consumer paid for by Mass Health (Medicaid).  The pay checks were issued by an agency CPM.  The case name is Gallagher v Cerebral Palsy of Massachusetts and was decided by the Massachusetts Appeals Court in September 2017.

The care giver sued the CPM agency with claims for unpaid overtime and violations of the Massachusetts Wage Act. Many cases determine someone’s status as an employer or not, by looking at the “right to control the details of performance’.

Under the special rules of the Massachusetts Wage Act MGL c 149 § 148 and Overtime Law MGL c 151 § 1 A,  determining employee status, starts with two questions 1) did the worker provide services for the claimed employer? And if so, 2) can the employer show all three of these?

  • The worker is free from the employer’s actual control and direction; AND

  • The worker performs a service that is “outside the usual course of business of the employer”; AND

  • The worker is “customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed”.

The Appeals Court decided the agency CPM was just a “fiscal intermediary” acting as a conduit for Mass Health funds according to a complex regulatory framework; those regulations explicitly say that agents like CPM are not responsible for hours in excess of those allowed.

The Appeals Court ruled that CPM was doing what regulations required, that it was not set up to get around the wage paying obligations of employers and that finally, under the first question for Wage Act cases – because the personal care attendant did not provide services for CPM the agency, there was no employee employer relationship between the two.

Comment – the increasing number of wage claims reflects a divide in society. I expect to see more rules imposed on employers to better the situation of workers.  Wage Act cases can reward workers and punish employers.