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Who Employs Who? Personal Care Attendants in Massachusetts

Published:  September 22, 2017

Human service agencies commonly use personal care attendants (“PCA”) as part of their operations.  Those organizations should be aware of a recent case decided by the Massachusetts Court of Appeals regarding the identity of the employer of the PCA.

As service agencies are aware, PCA’s are used to assist an individual who requires physical assistance with at least two activities of daily living (i.e., mobility, bathing, dressing, eating, etc.) because of a chronic or permanent disability.   MassHealth provides funds to hire  PCA.’s, to assist eligible individuals with daily living activities in the home.

The use of PCA’s can create a veritable minefield of employment law issues.  Many of these problems stem from the complicated business relationship between the State, outside agencies, the PCA and the client.  Simplified, the client employs the PCA with MassHealth funds, to which the client is entitled, often through the assistance of an outside agency.  These outside agencies, known as Fiscal Intermediaries, are contracted by MassHealth to assist the client with certain administrative tasks, which include processing time sheets, preparing paychecks, filing taxes, paying workers’ compensation insurance and issuing W-2 documents.  However, the client retains the right to hire/fire, schedule and direct the PCA’s work activity.  While this may sound simple enough, it often is not.  In fact, these arrangements create a whole host of complicated employment law problems.

In Gallagher v. Cerebral Palsy of Massachusetts, Inc., a PCA was hired to provide care for an elderly client with a brain injury.  These services, which were paid with MassHealth funds, were arranged by way of an outside agency, fiscal intermediary. The outside agency also administered payroll, unemployment insurance, taxes, etc.  Although the outside agency fulfilled many of the traditional roles of an employer, the client was legally the PCA’s employer.  After several years of employment, the PCA filed a lawsuit against the outside agency alleging that she had frequently worked greater than forty hours without overtime compensation. The Court granted the outside agency’s motion to dismiss on the grounds that they were not the PCA’s employer.  The PCA appealed.

On appeal, the PCA argued that the outside agency and the client were her joint-employers.  A  joint-employer relationship typically arises with contracted or subcontracted work.  Under the joint-employer doctrine, the agency could be determined to be the PCA’s employer if the agency possessed sufficient control over the PCA’s employment.  This analysis is a factual inquiry which, in most cases, would be sufficient to survive summary judgment.  However, the Appeals Court noted that this was “not the ordinary case.”  Unlike the traditional subcontractor-style joint-employer case, this case involved a specific regulatory framework.  Under M.G.L. c. 149, § 148B, the employer-employee relationship can only be established if, as a threshold issue, the alleged employee can show that they “provided service” to the alleged employer.

In the end, the Court determined that the PCA’s case failed under both tests. Although the agency provided certain facilitative services, the agency did not have the authority to control the P.C.A.’s employment. Additionally, the P.C.A. could not demonstrate that she provided any services to the agency.  However, the case demonstrates the potential legal obstacles that can arise when PCA’s provide care for a client.

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