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Md. health care firm facing 150 lawsuits from home care workers

Plaintiffs claim Maxim Healthcare Services attempted to avoid paying minimum wage and overtime

A national provider of home health care workers based in Columbia faces dozens of lawsuits claiming the company improperly classified workers to avoid paying them minimum wage and overtime.

As of Friday afternoon, 73 complaints have been filed in U.S. District Court in Baltimore against Maxim Healthcare Services Inc., according to electronic court records. Jason J. Thompson, a plaintiffs’ lawyer, said he expects around 150 lawsuits to be filed eventually.

Maxim provides in-home care, companion care and other health-worker staffing throughout the country, according to the complaints, which claim violations of the Fair Labor Standards Act.

This is not the first litigation Maxim has seen on this issue – the plaintiffs in the most recent actions were part of a class-action lawsuit filed in Ohio in 2012 that was decertified by joint stipulation earlier this year, according to court records.

Thompson, of Sommers Schwartz PC in Michigan, said attorneys learned through discovery that though Maxim had a corporate policy to classify home care workers as exempt, each worker’s case would be strongly fact-based.

“There really was no way you could keep this as a class,” Thompson said.

Many of those plaintiffs filed in Baltimore in May in five groups, but a judge granted Maxim’s motion to sever after finding the claims did not arise out of the same transaction, recurrence or series of transactions or occurrences because each plaintiff must prove their employment circumstances.

After a class is decertified, plaintiffs sometimes opt out of filing individually, either because it is not worth the cost and time or because they fear retaliation if they are current employees, according to Sally Dworak-Fisher, an attorney with the Public Justice Center in Baltimore.

Though not involved in the litigation, Dworak-Fisher said it is encouraging to hear about so many plaintiffs deciding to file complaints. The Public Justice Center conducts seminars for workers to inform them of their rights and also assists with legal representation to attempt to discourage employers from violating the law.

“I would say it’s terrific they’re moving forward with the individual lawsuits,” she said.

Standard in flux

Currently, companionship services include “services for the care, fellowship and protection of persons who… cannot care for themselves.” General household work is included in companionship services but cannot exceed 20 percent of the total hours worked per week.

Employees who serve as companions to the elderly or incapacitated are generally exempted from minimum wage and overtime requirements under the current law, according to the U.S. Department of Labor. But that standard is in flux as the department attempts to implement a rule that more narrowly defines companionship services and prohibits third parties such as Maxim from classifying employees as exempt.

The U.S. District Court for the District of Columbia nixed the rule late in 2014 before its Jan. 1 effective date, but the Court of Appeals for the D.C. Circuit reversed the lower court last month, according to Thompson. Questions remain about when the rule will be implemented, pending appeal, and when the effective date will be.

The plaintiffs claim they routinely worked for Maxim more than 40 hours per week and spent more than 20 percent of their time performing general housekeeping duties, not just patient care, according to the complaints.

In the Ohio litigation, Maxim disclosed it did not monitor the work habits or hours of employees so no records exist of what they spent their time doing, according to Thompson. The cases will turn on the testimony of the plaintiffs about their daily routine.

Dworak-Fisher said the Supreme Court has held that where a company does not keep records of employees’ work, the employee can testify to their recollection to prove their schedule.

“If the employer doesn’t keep track of the hours, they can’t get a windfall [by not paying overtime],” she said.