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Taylor v. Kennedy
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MAINE SUPREME JUDICIAL COURT			Reporter of Decisions
Decision:	1998 ME 234
Docket:	Yor-97-589
Submitted
on Briefs:	October 14, 1998
Decided:	October 28, 1998

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, SAUFLEY, ALEXANDER and 
CALKINS, JJ.

ELIECA TAYLOR et al.

v.

RICHARD KENNEDY, Personal Representative
of the Estate of Clarence Kennedy

CALKINS, J.

	[¶1] Richard Kennedy, the personal representative of the estate of
Clarence Kennedy, appeals from a judgment entered after a non-jury trial in
the Superior Court (York County, Cole, J.) in favor of plaintiffs Elieca Taylor,
Debra Dupuis, Geneva Kief, Lillian Manuel, and Gail Nowak.  The judgment
awarded the five plaintiffs damages and attorney fees on their claims for
unpaid wages pursuant to 26 M.R.S.A. § 626 (Supp. 1997).  On appeal,
Kennedy argues, inter alia, that the trial court erred in finding that the
plaintiffs were employees and that they made a demand for payment as
required by section 626.  The plaintiffs cross-appeal, contending that the
court should have assessed additional damages and attorney fees.  Because
we agree with the plaintiffs that they were entitled to treble damages for all
weeks that they were not paid their wages, we vacate and remand.
	[¶2]  	In 1992, Clarence and Lillian Kennedy gave their only son,
Richard Kennedy, their power of attorney, and he handled their financial
affairs.  Clarence and Lillian were elderly and suffering from a variety of
ailments.  In October 1994, Richard hired Taylor to provide home care for
his parents.  Taylor initially worked seven hours a day, doing various
household chores, such as preparing meals, laundry, shopping, cleaning, and
generally assisting Clarence and Lillian.  In December, 1994, Richard
authorized Taylor to work twelve hours per day.  Richard originally paid
Taylor on an hourly basis, but as of January 1, 1995, he started paying her a
weekly salary, and she agreed to be responsible for her own taxes.
	[¶3]  	By late 1994, the health of Clarence and Lillian had deteriorated
so substantially that they needed round the clock care.  Richard authorized
Taylor to hire additional caregivers.  In January, 1995, Taylor hired Kief and
Dupuis.  Richard became dissatisfied with Taylor and, during a telephone
call, suggested that he was going to terminate her services.  In the
meantime, an attorney employed by Legal Services for the Elderly visited
Clarence, who requested that the power of attorney to Richard be revoked. 
The attorney prepared a revocation which Clarence signed on February 3,
1995.  
	[¶4]  	Lillian died on February 11, 1995.  Clarence refused to see
Richard and instructed the police to keep Richard out of the house.
	[¶5]  	When Richard was informed of the revocation of the power of
attorney he stopped making payments to Taylor and the other caregivers. 
Clarence's attorney filed a petition to have the Department of Human
Services (DHS) appointed as temporary conservator.  The appointment was
approved by the Probate Court on February 23, 1995.  However, Richard
refused to turn over Clarence's assets to DHS.
	[¶6]  	Through February and March 1995, Taylor, Kief, and Dupuis
continued to care for Clarence.  Although they were not being paid, they
stayed on because Clarence asked them to and because he told them to "put
it on the tab," meaning that they would be paid once Clarence's assets were
recovered from Richard.  Taylor hired an additional caregiver, Manuel, for
weekends, and Taylor also hired Nowak, a licensed practical nurse, to give
prescribed injections to Clarence.  DHS was able to pay four of the caregivers
$200 each from a social security check that arrived for Clarence.  In early
April, Taylor injured her back and was not able to continue giving care. 
There was no money available to hire additional caregivers because Richard
still refused to turn over his father's assets to DHS.  Clarence entered a
nursing home on April 5, 1995.  He died on June 19, 1995.  The caregivers
were not paid for any services they provided between January 29, 1995 and
April 5, 1995, except for the $200 that DHS paid to Taylor, Kief, Dupuis and
Manuel. 

I.  Richard Kennedy's Appeal

	[¶7]  	Section 626 of title 26 provides in relevant part:

	An employee leaving employment must be paid in full
within a reasonable time after demand . . . .
	For purposes of this section, the term "employee" means
any person who performs services for another in exchange for
compensation, but does not include an independent contractor.
	For purposes of this subchapter, a reasonable time means
the earlier of either the next day on which employees would
regularly be paid or a day not more than 2 weeks after the day on
which the demand is made. . . . 
	An employer found in violation of this section is liable for
the amount of unpaid wages and, in addition, the judgment
rendered in favor of the employees must include a reasonable
rate of interest, an additional amount equal to twice the amount
of those wages as liquidated damages and costs of suit, including
a reasonable attorney's fee.

	
	[¶8]  	The trial court expressly found that Taylor and the other
caregivers were employees and not independent contractors.  The factors
that are to be applied to determine whether a worker is an employee or an
independent contractor are set forth in Murray's Case, 130 Me. 181, 186,
154 A. 352, 354 (1931):

(1) the existence of a contract for the performance by a person
of a certain piece or kind of work at a fixed price; (2)
independent nature of his business or his distinct calling; (3) his
employment of assistants with the right to supervise their
activities; (4) his obligation to furnish necessary tools, supplies,
and materials; (5) his right to control the progress of the work
except as to final results; (6) the time for which the workman is
employed; (7) the method of payment, whether by time or by
job; (8) whether the work is part of the regular business of the
employer.

The most important factor is the right to control.  See id. at 185, 154 A. at
354; see also Marston v. Newavom, 629 A.2d 587, 591 (Me. 1993) (applying
right to control test to section 626 employment status determination).  
	[¶9]  	The trial court applied those factors, and the record supports its
finding that Taylor and the other caregivers were employees.  They were
employed on an hourly basis for specific periods of time, with the exception
of Taylor whose pay was changed by Richard from hourly to a weekly salary. 
As Clarence's agent, Richard had the power to discharge the caregivers,
until his power of attorney was revoked, and he exercised control over
them, particularly Taylor.  Before and after the power of attorney was
revoked Clarence himself had the power to discharge and control the
plaintiffs.  It is also apparent that Taylor was authorized to hire Nowak and
Manuel.  We cannot say that the trial court's conclusion that Richard and
Clarence had the right to control the caregivers was clearly erroneous.
	[¶10]  The trial court also found that all five caregivers made a demand
for wages as required by section 626.   The record shows that they made a
demand for payment to DHS whose agent said they would be paid as soon as
Richard turned over Clarence's money.  Their attorney sent a demand letter
to Richard at a point in time when Richard held Clarence's assets.  On
several occasions Taylor discussed with Clarence the fact that the caregivers
were not being paid, and Clarence said they would be paid as soon as he got
the money from Richard. The trial court was not clearly erroneous in
concluding that the plaintiffs satisfied the statutory demand requirement.
	[¶11]  Richard's remaining arguments on appeal are without merit.

II.  The Plaintiffs' Cross-Appeal

	[¶12]  The trial court held that, for the time period from February 23,
1995, when DHS was appointed public conservator, to April 5, 1995, when
Clarence went in the nursing home, the caregivers were not entitled to the
treble damages mandated by 26 M.R.S.A. § 626.   The trial court determined
that the unpaid wages for that period were recoverable only in quantum
meruit.  Apparently the court construed the public conservatorship as
limiting the ability of Clarence to exercise control over the caregivers and
therefore to be their employer for purposes of section 626.  Nothing in the
Probate Code, however, states that a person under a conservatorship cannot
be an employer.  Indeed, the Code suggests the opposite.  See 18-A M.R.S.A.
§ 5-408(5) (1998) ("An order . . . determining that a basis for the
appointment of a conservator . . . exists, has no effect on the capacity of the
protected person."); Id. § 5-420, Unif. Prob. Code comment ("Unlike a
situation involving appointment of a guardian, the appointment of a
conservator has no bearing on the capacity of the disabled person to
contract or engage in other transactions.") 
	[¶13]  The appointment of DHS as Clarence's public conservator did
not change the fact that he had the right to control the plaintiffs.  If they
were his employees before February 23, 1995, as the trial court found with
ample support in the record, then they were his employees after that date
as well.  They were entitled to be paid on time and, because they were not,
they are entitled to the remedies mandated by the Legislature in section
626.{1}  
	[¶14]  The trial court did not articulate its reasons for reducing the
attorney fees requested by the plaintiffs by one-fourth.   It is possible that
the court made that reduction because of its erroneous conclusion that
section 626 remedies are not applicable for the entire period in question.  If
the reduction was for this reason, on remand the court should re-examine
reasonable attorney fees.
	The entry is:
	Judgment vacated.  Remanded for further
proceedings consistent with this opinion.
Attorney for plainitffs:

G. Charles Shumway, II, Esq.
222 Auburn Street, Suite 202
Portland, ME 04103

Attorney for defendant:

Stephen J. Sucy, Esq.
298 Main Street
Yarmouth, ME 04096