Two certified nursing assistants sued a skilled nursing provider saying they did not receive all pay for hours worked, including overtime, because they were misclassified as independent contractors. The staffing platform that provided the nurses is mentioned in the lawsuit, though it is not named as a defendant.

While the suit was filed in May 2023, a recent ruling limited what plaintiffs can recover. The suit also comes amid a debate in the industry over the misclassification of healthcare workers such as nurses as independent contractors.

The two CNAs filing the suit are Yolanda Deleon and Sirena Stell, but the suit seeks class action status.

The first amended complaint in the lawsuit says the defendant, Medicalodges, hires most of its CNAs through staffing platform ShiftKey. When CNAs register for a ShiftKey account, they receive a document asserting that CNA applicants will be placed as independent contractors. However, the complaint argues Medicalodges controls the CNAs’ work.

“Medicalodges exerts complete control over all aspects of plaintiffs’ and its CNAs’ workday,” according to the complaint. “Medicalodges allows potential CNAs to pick up shifts from a list of available shifts on the Shiftkey App and disciplines, hires, fires and defines all job responsibilities.”

Medicalodges Inc. is based in Coffeyville, Kansas, and operates nursing homes throughout Kansas, Missouri and Oklahoma.

A judge on Feb. 13 dismissed a motion by Medicalodges to dismiss the case. However, Alan L. Rupe, an attorney for Medicalodges, said the judge limited what the plaintiffs can recover.

“Judge Melgren denied our motion to dismiss plaintiffs’ Kansas Wage Payment Act and equitable claims. This is not surprising, [as] judges rarely grant motions to dismiss,” Rupe wrote in a note to SIA. “But Judge Melgren’s opinion focuses the dispute here. First, he agreed that plaintiffs cannot recover overtime or minimum wages under their Kansas Wage Payment Act claim. Second, he agreed that plaintiffs are not entitled to equitable remedies if those claims duplicate their [Fair Labor Standards Act] claims.”

Rupe continued, “Instead of providing a roadmap showing plaintiffs how to establish their claims, Judge Melgren simply limited what they can recover for under their claims.”

SIA has also reached out to attorneys for the plaintiffs. ShiftKey was also contacted for comment.

The lawsuit takes place amid a debate in the industry over whether nurses and other healthcare workers should be classified as independent contractors.

In August 2023, a coalition of 30 healthcare staffing firms sent a letter to the US Department of Labor asking it to issue an opinion letter confirming that temporary nursing staff placed in post-acute care facilities should be classified as employees rather than independent contractors. However, proponents argue that nurses classified as independent contractors help fill a critical need amid the nurse shortage. Proponents also caution against overbroad regulatory decisions being applied to firms with disparate business models instead of making a determination based on facts.

Separately, the US Department of Labor recently announced a settlement requiring a nurse staffing firm to pay $181,531 for allegedly misclassifying nurses as independent contractors. The firm said the matter was resolved amicably with the Department of Labor and that it reviewed its employee classification practices and overtime payment procedures to ensure they align with applicable laws and regulations.