PCAs, HHAs, VNA nurses or other healthcare workers who are required to drive their own vehicles from home to home to visit patients are required by MA state wage law to be paid not only the IRS mileage rate, but also for the time spent driving in their vehicle. The time spent putting wear and tear on your car, using your gas and traveling between appointments is considered working time where you are on the clock, particularly when appointments are spaced closely together with just enough time to get from one location to the next.
Maria, a single mom of two elementary school kids, swings her feet out of bed on Monday morning at 5:30am. She wonders silently to herself, "How am I going to get to all my patients and get to the bus to pick up Zach and Emily at 2:15?" Her mother arrives at 6:30am to get the kids ready and off to school. Her mother is a tremendous help. She thanks her lucky stars every day that her kids have their grandmother in their day-to-day lives. However, this morning, her mind is on her first appointment at a patient's home in Fall River, twenty minutes away from her house in Fairhaven.
Maria is one of several Massachusetts home health aides (HHAs) working for an out of state home health care company. She worked for this company for seven years and makes $14.50 per hour. She has had one raise of $1.00 the whole time she's worked there. She is growing tired of the low pay and the lack of respect she gets from her employer. If all she had to do was deal with were her patients, she would be all set. Her patients love her. She has a calm, caring voice and gentle hands. Her patients can't wait to see her walk through the door all decked out in her purple work scrubs. With a smile, she monitors their medications, gives them baths and helps them around their homes and apartments.
On this Monday, she has five patient appointments, with the first one starting at 7:30am sharp. After her mother arrives to wake the kids up for school, she searches for the keys to her Honda Civic with over 130,000 miles on it. It runs well. Always has. But this morning it needs gas. Gas to get to each patients's home to give them the care they need.
She leaves her driveway and heads for the local Cumby's as she knows they always have the cheapest gas. She needs to stretch her pay as far as she can as her young family lives paycheck to paycheck. Every dollar counts. She doesn't fill up. She is worried about how much is in her bank account. Half a tank will hopefully get her through the week. There are a lot of patient appointments this week. She worries that she may be back at the Cumby's for gas before Friday's paycheck arrives.
From the Cumby's she drives 20 minutes to her first appointment in Fall River. Before she gets out of her car, she runs through the routine: "O.K. Apply hand sanitizer to both hands and let it dry. Grab a new, clean face mask and put it on before entering the patient's home. Put on gloves before entering the patient's home." Maria takes these steps to protect patients from coronavirus. She doesn't know who the patient has been in contact with since her last appointment. Or whether the patient could be infected with Covid 19 and be an asymptomatic spreader. She is an unheralded frontline, essential worker. Needing this job and the $14.50 per hour, she enters her patient's apartment with a smile despite her fear that she could leave the apartment infected.
After an hour long appointment in Fall River, she only has half an hour to get to the next appoinment in Westport Point, which requires a long drive down Route 88 out towards Horseneck Beach. When she gets back in her car from her Fall River appointment, she reverses her routine. She disposes of the used mask and gloves. She sanitizes her hands again. She drives out to Westport Point, santizes her hands again, grabs a new, clean mask, grabs a new pair of gloves and enters her patient's home with a warm greeting and a smile.
This process repeats itself for the next three appointments. She eats her lunch in her car driving between appointments. She leaves the last patient's house at 1:30. She makes the bus by 2:15. She worked six straight hours with no lunch break.
On Friday her check is directly deposited into her bank account. She accesses the payroll portal online to look at her pay stub. She knows she worked 30 hours because she had the same patient schedule all week. She worked from 7:30a to 1:30p five days straight. Her pay stub only lists twenty-five hours. She internally screams when she see the stub. "Damn, they did it again. They only paid me for the time with the patient but not the time traveling to and from patients' homes. And no reimbursement for mileage for all the gas I put in my car to drive around for them! How many times do I have to complain for them to listen?! This is not right! I'm trying to pay the bills and keep food on the table!"
Maria knows that if she continues to complain she may be conveniently "laid off." What Maria does not know is that her employer knows exactly what it is doing. Her employer subscribes to home health care industry newsletters and magazines which discuss the proper way to pay home health aides for travel time and reimburse them for expenses. Her employer has chosen, as a policy and practice, not to pay travel time in Massachusetts or reimburse home health aides for transportation expenses. They have made this choice because it saves them hundreds of thousands of dollars in wages, tax contributions and transportation expense reimbursements. There is no doubt that the company's CEO has a company car and gets reimbursed for all his travel expenses.
Maria's Paycheck, INCLUDING Travel Expenses and Time
Maria makes $14.50 an hour, and she spent 25 hours this week in patient's homes, so her paycheck totaled $362.50 before taxes and deductions.
However, she actually spent a total of 5 hours throughout the week driving between patient's homes to make each appointment. If she was paid her travel time for that week, which was five hours, her check would have been for $435.00 ($14.50 x 30 = $435).
Let's say she drove 50 miles that week between patient appointments. The current IRS mileage reimbursement rate is $0.5750 per mile. Using the IRS mileage remimbursement rate, Maria was owed an additional amount of $28.75 as a reimbursement for transportation expenses incurred for her employer. 50 miles x 57.50 cents = 2,875 cents = $28.75.
So, what should her check really have been if her employer complied with Massachusetts law? $463.75.
She should have been paid an additional $72.50 in wages and reimbursed $28.75 for transportation expenses for a total pre-tax increase in her paycheck of $101.25.
The Law In MA on Traveling For Work
What does the Massachusetts Wage Act say about Maria and other home health aides who are not paid travel time? What is the Massachusetts law on unpaid travel time and the reimbursement of expenses? Not wanting to bore you with the technical language of the specific regulation from the Code of Massachusetts Regulations that directly discusses travel time and transportation expenses, let's just say that Massachusetts is one of the few states which expressly requires that employers pay employees for travel time and transportation expenses.
Wage Law Violations Go Back 3 Years...and TRIPLE that...
Now let's make some projections on Maria's unpaid wage claim. If you project the math out a little further by assuming that Maria worked 46 weeks in a given year, which is about the average for American workers. She would be owed $4,657.50 for each year where she worked an equivalent schedule at the same hourly wage. $4,657.50 x 3 years = $13,972.50 Again, assuming the same number of hours worked per week and the same rate of pay, since Massachusetts wage law allows Maria to recoup lost wages for three years and potentially triple any losses, Maria could potentially pursue a Massachusetts wage claim for $13,972.50 x 3 for triple damages = $41,917.50. That means for a loss of $13,972.50 in money she should have been paid as earnings under the law, Maria could potentially collect $41,915.50.
Maria should also know that she is protected from retaliation from her employer under the Massachusetts Wage Act. If her employer fires her for making a complaint about her wage rights, she has a big, fat retaliation claim against her employer which may have a lot more monetary value before a jury than her unpaid wage claim.
Getting Paid For Time Spent Driving For Work
Will Maria's employer just fork over the $41,917.50 without a fight? No. They rarely ever do. The employer's defense lawyers will argue that travel time is not owed, that any travel time should be reimbursed at minimum wage, the employee never kept track of their travel time and can't claim it now, gas expenses can't be proven because the employee did not keep records, the statute of limitations has run on her claim, the IRS standard mileage rate does not apply, and so on.
Maria will most likely have to hire a Massachusetts employment law attorney and file a lawsuit to get what she is owed. If her coworkers are also not being paid travel time, then she may be able to get them paid too by hiring a MA class action lawyer. The experienced lawyers here at Phillips Garcia can do this for you and have a track record of doing it successfully. See some of the things our home health aide clients have said about working with us.
We have been taking unpaid wage claims for home health aides on a contingency basis where we front our time and expenses and only get paid if the HHAs or PCAs win their cases. If Maria's story sounds familar, click on the contact form and we'd be glad to help another home health aide.
(Maria's story is a compilation of the stories we hear from home health aides we've represented).