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Escorbor v. Helping Hands Co., Inc.

Superior Court of Massachusetts, Suffolk

September 13, 2017

Sonia Escorbor
Helping Hands Company, Inc. et al


          Douglas H. Wilkins, Associate Justice

         On July 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.


         For 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 Mass.R.Civ.P. 23.

         Helping 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.

         Helping 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:

Employee Name:
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.
Date Employee

         Helping 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.

         In Ms. 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].

         The employer's failure to keep records as alleged in Count V.

         Named plaintiff Sonia Escorbor ended her employment at Helping Hands in xxxxxxxxxxxxx.



          Class 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" ...

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