MEMORANDUM AND ORDER ON CLASS CERTIFICATION
Douglas H. Wilkins, Associate Justice
8, 2015 the plaintiff, Sonia Escorbor (" Escorbor"
), filed this putative class action lawsuit under the Wage
Act (Count 1); the Massachusetts Minimum Wage Law (G.L.C.
151, § 1) (Count II), Contract (Count III), Unjust
Enrichment (Count IV) and violation of record-keeping
requirements (Count V) against the defendants Helping Hands
Company, Inc., The Suburban Homemaking & Maternity
Agency, Incorporated (" Suburban" ), Michael J.
Roper and Martin J. Roper (collectively, " Helping
Hands" ). On May 22, 2017, the Plaintiff filed
Plaintiff's Motion for Class Certification ("
Motion" ), which the defendants opposed. By motion filed
on June 22, 2017, Helping Hands moved to strike expert
materials included with Escorbor's reply memorandum. The
issue having been fully briefed and argued on July 26, 2017,
the Court ALLOWS the Motion to Certify a Class.
purposes of the Motion only, the Court finds the following
preliminary facts for purpose of making a reasonable judgment
on whether the proposed class meets the requirements of
Hands is a home care agency which employs hundreds of home
health care aides. The aides provide patient care in towns in
the Greater Boston area. They are compensated for their work
in visiting patients, to provide those patients with home
health care to include personal care, light housekeeping and
assistance with activities of daily living. The process of
placing an aide with a patient is a complicated one, with
many variables including geography, culture, language, gender
and availability of schedule. Each aide has a schedule unique
to him or her, which varies month-to-month and often
week-to-week or day-to-day. The duration of patient visits
also varies considerably.
Hands entered into a Travel Agreement with Ms. Escorbor and
numerous class members, providing for payment at an hourly
rate of $10.00 and an hourly travel expense of $2.00. The
Travel Agreement left blank any provision for " Hourly
Travel Time." Its format was virtually identical for all
who signed Travel Agreements without an entry for "
hourly travel time" and read:
1. Hourly Rate: $[typically $10]
2. Hourly Travel Time: $[typically blank]
3. Hourly Travel Expense: $[typically $1 to $2]
4. Total: $[typically $11 to $12]
I am entitled to be paid for my travel time and expense
between clients. To get paid, I must submit reports of my
travel time and travel expense. Instead of submitting travel
time and expense reports, I would like to be paid the Hourly
Travel Pay (4), which accounts for the travel time and travel
expense I now spend on an hourly basis. If at any time I
think that the Hourly Travel Pay does not correctly show the
travel time and travel expense I spend each week, I can
cancel this agreement at any time by giving Helping Hands
written notice and then get paid by submitting reports of my
travel time and travel expense.
Hands did not withhold taxes from the Travel Pay. It did
withhold taxes, at least in part, from something called
" differential pay," which were sums paid to home
health aides who reported to Helping Hands that the travel
pay did not fully compensate her.
Escobor's case, Helping Hands did not keep records
showing how much travel time was spent by each of its
employees who signed the Travel Agreement. The inference
that, under the parties' agreement Helping Hands actually
reimbursed travel expense and paid nothing for hourly travel
time receives support from the allegations that (1) Helping
Hands did not withhold or pay payroll-related taxes such as
FICA, on the Hourly Travel Expense, (2) travel demands of the
job within the work day often exceed $2.00, if one considers
both travel time and travel expense, and (3) the
employer's failure to comply with its record-keeping
obligations as to hours and travel expense. Using facts in
the Second Amended Complaint, Escorbor's Memorandum
plausibly calculates travel expense in a reasonable way, such
as the IRS reimbursement rate, which exceeds 50 cents per
mile. Using such a calculation, any travel exceeding 4 miles
in one hour would completely consume the travel allowance.
The Second Amended Complaint alleges enough facts to support
an argument of a plausible failure to pay the minimum wage
for intra-workday travel as required by 454 Code Mass.Regs.
27.04(4)(d). Garcia v. Right at Home, Inc., No.
2015-808-BLS2, 2 (Suffolk Sup.Ct. Jan. 19, 2016) (Sanders,
J.) [33 Mass. L. Rep. 346].
employer's failure to keep records as alleged in Count V.
plaintiff Sonia Escorbor ended her employment at Helping
Hands in xxxxxxxxxxxxx.
certification does not turn on the merits. Salvas v.
Wal-Mart Stores, Inc., 452 Mass. 337, 361, 893 N.E.2d
1187 (2008), quoting Weld, 434 Mass. at 84-85. See
generally Aspinall v. Philip Morris Cos., 442 Mass.
381, 391-92, 813 N.E.2d 476 (2004), quoting Fletcher v.
Cape Cod Gas Co., 394 Mass. 595, 605, 477 N.E.2d 116.
(1985). The plaintiff's burden is well established:
On a motion for class certification pursuant to either rule
23 or G.L.c. 93A, § 9(2), " [t]he plaintiffs bear
the burden of providing information sufficient to enable the
motion judge to form a reasonable judgment that the class
meets the requirements of rule 23 [and c.93A § 9(2)];
they do not bear the burden of producing evidence sufficient
to prove that the requirements have been met" ...