36. Problems with claims that are not usually resolved at hearing and need to be appealed to court
While many cases can be resolved through a redetermination or appeal hearing, some cases may have to be appealed to court. A worker who disagrees with a hearing decision may file an appeal to court within 30 days of receiving the hearing decision. G.L. c. 175M, § 8(d). The appeal may be filed in the district court within the district in which the covered individual lives, or is or was last employed, or has a usual place of business. Id. In such cases, the Department of Family and Medical Leave is the defendant. Id. Please contact GBLS for possible assistance with the issues described below.
Workers can find the appropriate district court by typing their address (or the address where they work or worked) on the following website: https://www.mass.gov/orgs/district-court/locations.
Misclassification
In some cases, workers who should be treated as employees eligible for PFML benefits are “misclassified” by their employers. When an employer says a worker is not an employee (or calls them self-employed or an independent contractor) it will not make PFML contributions on their behalf or report their wages to DOR or DUA. When this happens, DFML will have no record of the wages paid by this employer. Therefore, DFML will deny the worker benefits (or may approve for a lower weekly benefit amount than they should).
On appeal, DFML goes with whatever classification the employer decided (as of May 2025). If the employer decided the employee was not an employee and did not make contributions or report wages, then DFML will deny the appeal.
The correct legal standard is that any “service” performed by anyone for anyone else “shall be deemed to be employment” “unless and until” the alleged employer proves all three of the following from G.L. c. 151A, § 2:
- The worker “has been and will continue to be free from control and direction” by the alleged employer.
- The worker performs the service “outside the usual course of the business” or “outside of all the places of business of the enterprise for which the service is performed.”
- The worker is “customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.”
In other words, the employer has to prove that the worker is NOT an employee, and PFML benefits should be approved “unless and until” the employer proves that. Practically speaking, the employee will still have to prove they performed services and that they were paid enough money to be financially eligible for PFML benefits (for example, being paid at least $6,300 in the past year, for PFML leaves starting in 2025).
Misclassified workers who wish to challenge their financial eligibility denials by arguing they should be classified as employees may contact GBLS for possible assistance.
Wages reported to a different state
To determine financial eligibility, DFML looks at wages reported to the MA DFML and the MA DUA. If the employer reported the wages to another state, DFML will not see the wages and will deny the claim. This happens most often when the company is based in a neighboring state and most of its workforce is not in MA, so they treat everyone as if they worked in the neighboring state. This is common with construction jobs, traveling sales jobs, or other jobs where the headquarters has little connection to where the worker actually performs the work on a daily basis.
To determine whether the worker’s wages should have been reported in Massachusetts, the PFML statute incorporates a test from the unemployment insurance statute, G.L. c. 151A, § 3. The standards from this provision are also found in DFML’s regulations defining what workers and businesses are covered as “Massachusetts covered individuals” and “Massachusetts employers,” respectively. 458 C.M.R. 2.01(2).
At the hearing, the worker must show that the work was "localized in Massachusetts,” 458 C.M.R. 2.01(2)(a), or that it was not localized in any state, but part of the work was performed in MA, 458 C.M.R. 2.01(2)(b).
Under (2)(a), work is considered “localized in Massachusetts” if it is entirely performed within Massachusetts. It is also localized in MA if there is some work in other states, but that work is “incidental to the individual’s service in Massachusetts,” such as temporary, transitory, or isolated work in other states.
Under (2)(b), if the work is not localized in any state (meaning it doesn’t fit (2)(a) because there is significant work in more than one state), then it can be considered work in MA if the individual’s “base of operations” is in MA or the management’s “place from which the service is directed and controlled” is in MA. It can also be considered based in MA if the “base of operations” or “place from which the service is directed and controlled” is not in any state, but the individual lives in MA.
The worker should submit records of where they worked jobs, such as schedules, work assignments, paystubs showing state income taxes reported, or any other records. The worker can also submit records of when or how often they had to go to the headquarters or any offices outside of MA. The worker can give testimony about where they worked or bring witnesses.
As of May 2025, DFML does not apply these statutory and regulatory provisions, and instead defers to where the employer reported wages. Workers who wish to challenge their employer’s reporting to another state may contact GBLS for possible assistance.
Alternatively, these workers may be able to get benefits approved if their employer is willing to retroactively report wages and make contributions on their behalf to Massachusetts. Then, the worker can appeal the denial and notify DFML that the employer has recently reported the wages to MA retroactively.
Wrong weekly benefit amount
DFML often calculates the weekly benefit amount wrong when there was more than one job in the “base period” year before the PFML leave starts. DFML calculates PFML benefits separately for each employer, based on the “average weekly wage” from that employer. 458 C.M.R. 2.02 (“average weekly wage”). That means it requires a separate application for each current employer. It does not allow or approve applications filed against a former employer if there is a current employer. So, for example, a worker who had two jobs for a full year but lost one of those jobs shortly before taking PFML leave, the regulations and internal policies say the worker can only get benefits based on the current job.
At the hearing, the worker should always argue that benefits should be based on “total wages reported for the individual in the two highest quarters of his base period.” G.L. c. 151A, §1(w). Total means all. That is what the UI statute says, and PFML adopts the definition of average weekly wage from the UI statute. G.L. c. 175M, § 1. The worker should also include information in the appeal about when each job started and ended.
It is sometimes possible to get multiple employers included in the weekly benefit amount with or without a hearing. In other cases, DFML will refuse to include all wages.
Example 1: If the current employer reported wages in 2 calendar quarters before PFML leave, then DFML assumes the work lasted more than 26 weeks. This is often a false assumption. The worker can provide the start date at the current employer and show it is within 26 weeks (182 days) of when the leave started. This will usually get approved before or after a hearing.
Example 2: If the separation from the former employer was less than 26 weeks before PFML leave started, the worker should report the separation date. Then, the worker can argue that a “recent former employer” should be included in the benefit calculation. The DFML appeals department is not very consistent in how it handles these cases, but it may get approved. (Note that if there is no current employer, the worker is eligible as an unemployed worker under G.L. c. 175M s. 1: “covered individual” - “separated from employment” for less than 26 weeks. In that case, the wages from the former employers will probably be included on appeal.)
Example 3: If the worker changed jobs more than 26 weeks before taking PFML leave, DFML is very resistant to including the wages of the former employer. This will require a second appeal to court to argue about the meaning of “total wages.” There is litigation pending on this issue as of May 2025.