Two certified nursing assistants hired as contractors through a gig work app can continue pursuing back wages from a nursing home they argue treated them as employees, a District Court judge ruled.
The outcome of the case likely hinges on resolving alleged worker misclassification claims, according to the Feb. 13 ruling.
The ongoing case is the latest example of worker misclassification suits that have plagued some skilled nursing providers and drawn increased oversight from the Department of Labor in recent years.
Plaintiffs Yolonda Deleon and Sirena Stell alleged that, though they were contracted through a gig app called ShiftKey, skilled nursing provider Medicalodge strictly controlled when they worked, managed many details of how their daily work was accomplished, required them to stay late waiting for other CNAs to take over, directed them to not take breaks and sometimes deducted wages for breaks that were not taken.
The plaintiffs filed suit in August — arguing, in part, that these employee-like working conditions entitled them to “gap time” pay under the Kansas Wage Payment Act (KWPA).
Medicalodge responded in September with a motion to dismiss. The provider argued that though the CNAs were subject to oversight, they were still independent contractors and not able to recover overtime pay through the act.
The judge disagreed with this motion.
“Plaintiffs clarify in their Response that Count II does not seek to use the KWPA to recover pay for overtime or to enforce minimum wage laws. Rather, Count II seeks to recover only ‘gap time,’ which is uncompensated work that falls under forty hours per week,” he wrote.
Classification still in question
While the judge allowed this count of the lawsuit to continue, the case overall is still undecided.
Count two relies on the KWPA, but counts one and three request similar back wages while relying on the Fair Labor Standards Act and the “common law theory of unjust enrichment,” respectively. The resolution of these counts relies on first resolving the dispute over the CNAs’ employment classification, according to the court.
“Here, the dispute over whether Plaintiffs are employees or independent contractors is
Unresolved,” Melgren wrote. “If Plaintiffs are found to be employees who could recover unpaid gap time under the KWPA or unpaid overtime under the FLSA [in counts one and two], then claims for equitable relief [in count three] could be eliminated from this case. However, given that several key factual disputes on Plaintiffs’ claims remain, judgment on the pleadings is not appropriate at this time.”
Medicalodge did not respond to McKnight’s request for comment Friday.
The long-term care sector has heavily trended toward more reliance on agency and contract care workers in the last few years making it likely that worker classification cases will continue to be a high stakes issue for providers. Due to the high level of employee oversight required in skilled nursing and the increased share of contract care workers in the workforce, labor advocates have argued that regulatory oversight is increasingly necessary to ensure that care workers aren’t misclassified.
