Alderoty v. Maxim Healthcare Services, Inc., a Maryland Corporation
Filing
60
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 9/23/2015. (kw2s, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
JOSHUA ALDEROTY,
ANNA AGUIRRE,
MICIIAEL BONDS,
THEODORE ERDE- WOLLIIEIM,
DOUGLAS HARRIS,
BRANDON KAZNICA, and
PHILLIP SWOPE,
individually and on behalf of all similarly
situated individuals,
Civil Action No. TDC-14-2549
Plaintiffs,
v.
MAXIM IlEALTHCARE SERVICES, INC.,
a Maryland Corporation,
Uefendant.
MEMORANDUM
OPINION
Joshua Alderoty, Anna Aguirre,l Michael Bonds, Theodore Erde-Wollheim, Douglas
Harris, Brandon Kaznica, and Phillipe Swope (collectively,
"Plaintiffs"), acting as individuals
and on behalf of all similarly situated individuals, have sued their former employer, Maxim
Hcalthcare Services, Inc. ("Maxim"), alleging violations of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. ~~ 201-219 (2012), and various wage and hour laws in California, Kansas,
Maryland, Missouri, Nevada. and New York. With respect to the FLSA claim, Plaintiffs have
filed a Prc.Discovery
Motion for Conditional Class Certification and Court-Supervised
Potential Opt-In Plaintiffs Pursuant to 29 U.S.c.
Notice to
~ 216(b) ("Motion for Conditional
Class
1 Although the Complaint spells this plaintiffs
last name ""Aguuire," and her signed Declaration
spells it "Agguire," Maxim reports that the spelling in its human resources records is "Aguirre."
In this Memorandum Opinion, the Court will use the human resources spelling.
Certification").
Declarations
Also pending before the Court are Maxim's Motion to Strike in Part Plaintiff's
in Support of Their Motion for Conditional
Declarations"), Motion to Strike-Qr,
Certification
("Motion
in the Alternative, Stay or Transfer-Collective
to Strike
and Class
Action Claims ("Motion to Strike Claims"), and Motion to Strike Plaintiffs' Proposed Notice
("Motion to Strike Notice").
For the reasons set forth below, Plaintiffs' Motion for Conditional
Class Certification is GRANTED IN PART and DENIED IN PART; Maxim's Motion to Strike
Declarations is DENIED; Maxim's Motion to Strike Claims is DENIED; and Maxim's Motion to
Strike Notice is GRANTED IN PART and DENIED IN PART.
The Court also authorizes
Plaintiffs to issue the attached Notice to prospective class members.
BACKGROUND
Maxim is a Maryland.based
United States.
healthcare staffing company that operates throughout the
Maxim recruits nurses and other healthcare professionals
hospitals, medical offices, nursing homes, and patients' homes.
to be placed in
To do so. Maxim employs
Recruiters, including Senior Recruiters, whose duties include recruiting potential candidates
through the use of websites and telephone calls, screening potential candidates for minimum
qualifications and fitness for employment under Maxim standards, assisting in scheduling work,
inputting hours for payroll, and answering the office phone.
Senior Recruiters have some responsibilities
in addition to those of Recruiters.
For
example, they participate in orienlation for new employees, contact insurance companies and
schools for insurance authorization,
and participate
in sales calls and site visits.
Senior
Recruiters do not supervise other Recruiters and do not have the authority to hire and fire
employees.
Senior Recruiters report to Account Managers, who have authority to hire and fire
personnel, impose discipline, evaluate job performance, and negotiate terms of placement and
2
fees relating to Maxim personnel. Senior Recruiters routinely work more than 40 hours per week
and are compensated
through a base salary and commission without overtime pay.
Maxim
classifies all salaried Senior Recruiters as exempt from the overtime pay requirement of the
FLSA, 29 U.S.c.
SS 207,
213.
Although there have been some changes in organizational structure, Maxim is generally
divided into two lines of business:
"Homecare" and "Staffing."
Senior Recruiters typically
work in either a Homecare or Staffing office, but they sometimes work in "Hybrid" offices,
which focus primarily on Homecare services but also provide a limited amount of Staffing
services. Senior Homecare Recruiters generally match nurses and other healthcare professionals
to work
III
administrative
a patient's
home.
professionals
Senior Staffing Recruiters generally match healthcare
to work in hospitals,
nursmg
homes,
and other
and
facilities.
According to Maxim, the duties of Senior Recruiters differ based on the line of business, the type
of recruited positions, the size of the office, and the geographic area. For example, Homecare
Recruiters generally need to identify healthcare workers who do not require any training because
they must work at a home without supervision, and they must have Maxim clinical staff evaluate
and ultimately approve the hiring decisions.
Staffing Recruiters, on the other hand, place
healthcare workers into institutions like nursing homes and generally make selection decisions
for those institutional clients.
Although both Homecare Recruiters and Staffing Recruiters
receive a base salary, their compensation differs in that they receive additional pay, either
bonuses or commissions, through different formulas based on office performance and other
factors.
On August 11,2014,
Plaintiffs filed this action, alleging that Maxim had misclassified
them as exempt from the overtime requirements of the FLSA, and that it had unlawfully failed to
3
pay them overtime wages.
Plaintiffs brought the case as a collective action, on behalf of all
Maxim Senior Recruiters, pursuant to 29 U.S.c. 9216(b).
their Motion for Conditional
Class Certification,
On February 9, 2015, Plaintiffs filed
seeking (1) conditional
certification
of a
collective FLSA class to which to send statutory notice, (2) implementation of a procedure by
which court-approved notice of Plaintiffs' FLSA claim is sent to "all current and former salaried
Senior Recruiters who worked for Maxim Healthcare Services, Inc. at any time since August 11,
2011," and (3) an order that Maxim identify all potential opt.in plaintiffs by providing a list of all
current and former salaried Senior Recruiters who worked for Maxim for the past three years.
On March 30, 2015, Maxim filed its Motion to Strike Declarations, Motion to Strike Claims, and
Motion to Strike Notice.
DISCUSSION
I.
Maxim's Motion to Strike Dedarations
Because it raises a preliminary issue regarding the evidence to be considered in resolving
the Motion for Conditional Certification, the Court will first address Maxim's Motion to Strike
Declarations.
Maxim has moved to strike certain portions of 10 declarations filed by individual
plaintiffs because (1) they are .'boilerplate" in that they contain the same statements by each
plaintiff; and (2) they run afoul of the Federal Rules of Evidence in that they are not based on
personal knowledge, are speculative, and lack foundation.
The Motion fails for several reasons.
First, motions to strike are governed by Federal
Rule of Civil Procedure 12(1), which states that .'the court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."
Civ. P. 12(f) (emphasis added).
Fed. R.
Here, the challenged declarations were attached to Plaintiffs'
4
Motion for Conditional Class Certification, not their complaint, and therefore are not subject to a
Rule 12(t) mution.
Second, the boilerplate nature of the declarations does not necessarily disqualify them
from consideration.
See Guzelgurgenli v. Prime Time Specials, Inc., 883 F. Supp. 2d 340, 352
(E.D.N.Y. 2012); Hargrove v. Ryla Teleservices, Inc., No. 2:llcv344,
(E.n. Va. Jan. 3, 2012).
2012 WL 489216, at *8
While district courts have considerable discretion to grant motions to
strike, unless they target redundant, impertinent, immaterial, or scandalous matter, they arc
generally disfavored. See Waste Managementlloldings,
Inc. v. Gilmore, 252 F.3d 316, 347 (4th
Cir. 2001).
Although the inclusion of redundant information may provide a basis to strike a
declaration,
these declarations
are highly pertinent to detennining
whether to conditionally
certify the proposed class; indeed, the fact that they may be redundant is material to the question
whether the proposed class consists of similarly situated employees.
See Essame v.
sse Laurel
Operating Company LLC, 847 F. Supp. 2d 821, 825 (D. Md. 2012) (finding similarity in the
plaintiffs' declarations to be probative in assessing the "similarly situated" question).
Finally, the Court rejects Maxim's claim that the declarations should be stricken because
they contain material not based on personal knowledge, lacking in foundation, or containing
legal conclusions.
Upon review of the challenged material, the Court concludes that the facts
contained in the declarations by fonner Maxim employees do not go beyond the universe of
information that employees in their positions could be expected to have acquired during their
tenures at Maxim.
Maxim's insistence on explicit evidentiary foundations for each piece of
information and its hyper-technical parsing of the language in the declarations would impose an
unreasonable standard for lay witness declarations and would likely require striking portions of
its own witnesses' declarations.
For example, Maxim seeks to strike Alderoty's assertion that
5
"Maxim often required me to be on call 24 hours per day," because it purportedly constitutes a
legal conclusion.
See Alderoty Decl. Ex. F ~ 4, ECF No. 31-8.
Yet Maxim submitted a
declaration in which a Senior Recruiter made the comparable assertion that "(w]hen 1 joined
Maxim, I understood that 'on.call'
duties were part of the job."
See Manson Decl.
10, Eel"
No. 41-6. For these reasons, the Motion to Strike Declarations is denied.
II.
Plaintiffs' Motion for Conditional Class Certification
A. Legal Framework
The FLSA generally requires that employees who work more than forty hours in a week
receive overtime pay at the rate of one and one-halftimes
their regular pay rate. See 29 U.S.c. ~
207(a)( I). This requirement, however, does not apply to "any employee employed in a bona fide
executive, administrative, or professional capacity."
29 U.S.C. ~ 213(a)(I).
The Secretary of
Labor, whom the FLSA authorizes to promulgate regulations on this exemption, 29 U.S.c. ~
213(e), has defined an administrative employee as someone (I) "who is compensated on a salary
or fee basis at a rate of not less than $455 per week"; (2) "whose primary duty is the perfonnance
of office or non-manual work directly related to the management or general business operations
of the employer or the employer's
customers";
and (3) "whose primary duty includes the
exercise of discretion and independent judgment with respect to matters of significance."
C.F.R.
9 541.200
29
(2015); see also Darveau v. Delecon. Inc., 515 F.3d 334, 338 (4th Cir. 2008).
If an employer violates these rules, employees may sue their employers as individuals or,
if they choose, in a collective action on behalf of themselves and "similarly situated" employees.
29 U.S.C.
9
216(h); see also Simmons v. United Mar/g. & Loan Inv., LLC, 634 F.3d 754, 758
(4th Cir. 2011). If employees choose to pursue a collective action, they may seek court-approved
notice to infonn similarly situated employees that they may join the litigation. See Hoffman-La
6
Roche v. Sperling, 493 U.S. 164, 169 (1989) (discussing the parallel collective action provision
under the Age Discrimination in Employment Act).
The collective action provision serves several purposes.
plaintiffs
"the advantage
resources."
First, collective actions allow
of lower individual costs to vindicate rights by the pooling of
See id. at 170. Second, collective actions allow the courts efficiently to resolve
common issues in one proceeding. See id. Third, FLSA collective actions promote enforcement
of the law by empowering employees to "join in their litigation so that no one of them need stand
alone in doing something likely to incur the displeasure of an employer." See Pentland v. Dravo
Corp., 152 F.2d 851, 853 (3d CiT. 1945).
Although the United States Court of Appeals for the Fourth Circuit has not provided
guidance on how to address a motion for conditional class certification. decisions from other
Courts of Appeals have identified, and judges of the United States District Court for the District
of Maryland generally apply, a two.step process to test the sufficiency of the purported class: (1)
a pre-discovery determination that the purported class is similarly situated enough to disseminate
notice (the "notice stage") and (2) a post-discovery determination,
motion for decertification,
typically in response to a
that the purported class is indeed similarly situated.
See, e.g.,
Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1102 (10th CiT. 2001); Hipp v.
Liherty Nat 'I Life In.>.Co., 252 F.3d 1208, 1218-19 (11th CiT. 2001); Mooney v. Aramco, 54
F.3d 1207, 1213-14 (5th CiT. 1995); Randolph v. Powercomm Constr .. Inc., 7 F. Supp. 3d 561,
575 (D. Md. 2014); Syrja v. WeSlat, Inc., 756 F, Supp. 2d 682, 686 (D. Md. 2010). At the notice
stage, courts applying this process make a threshold determination whether the class is similarly
situated based on "substantial allegations" in the pleadings and any submitted affidavits or
declarations.
See Thiessen, 267 F.3d at 1102. Then, once discovery is largely complete, such
7
courts perform a more stringent inquiry on whether the class
IS
indeed similarly situated.
Mooney, 54 F.3d at I2t4.
Because the record is sparse at the notice stage, courts often apply "a fairly lenient
standard:'
fd.; Hipp, 252 F.3d at 1218 (noting that courts use a "fairly lenient standard" that
"typically results in 'conditional certification'" at the notice stage); Randolph, 7 F. Supp. 3d at
575-76.
Thus, courts require no more than "substantial allegations that the putative class
members were together the victims ofa single decision, policy, or plan." Thiessen, 267 F.3d at
1102 (citations omitted); Rando/ph, 7 F. Supp. 3d at 575-76.
In other words, although vague
allegations with meager factual support are generally insufficient to certify a class, proponents of
conditional class certification need not conclusively demonstnlte that a class of similarly situated
plaintiffs exists. See Rando/ph, 7 F. Supp. 3d at 576; Syrja, 756 F. Supp. 2d at 686 (requiring
"relatively
modest"
Determinations
evidence
that the putative
class
members
are
similarly
situated).
on whether plaintiffs have met this standard are generally left to the sound
discretion of the district court. Hipp, 252 F.3d at 1219; Syrja, 756 F. Supp. 2d at 686.
This Court will apply the two-step process because an early, modest inquiry into the
propriety of conditional class certification before issuing court-approved notice is consistent with
the purposes of the FLSA collective action provision.
Certainly, some threshold inquiry before
issuing notice to potential class members is appropriate to ensure that notice is not subject to
misuse and is "timely, accurate, and informative."
See Hoffman-La Roche, 493 U.S. at 171-72.
But it is equally important that the inquiry occur early and under a lenient standard to be
consistent
with the FLSA's
purposes of promoting efficient joint adjudication
of claims,
lowering the costs of litigation to employee plaintiffs, and accounting for employees'
reluctance to challenge to an employer. See id at 170; Pentland, 152 F.2d at 853.
8
natural
Moreover, the two-step process is appropriate because unlike in a class action under
Federal Rule of Civil Procedure 23, the statute oflimitations
on an FLSA claim is not tolled on
an individual employee's claim until that employee opts into the class. Compare American Pipe
& Conslr. Co. v. Ulah, 414 U.S. 538, 55ll-51 (1974) (holding that the filing of a class action
within the statute of limitations commences the case for subsequent plaintiffs), with Kinney Shoe
Corp. v. Vorhes, 564 F.2d 859, 862 (9th Cir. 1977) (holding that the filing of a collective action
within the statute of limitations does not commence the case for subsequent plaintiffs).
early notice to similarly situated individuals,
even before a final determination
Thus,
on class
certification, is necessary to allow them to timely assert their claims.
Finally, because all employees who join an FLSA collective action, unlike a Rule 23
class action, must affirmatively opt into the litigation as plaintiffs, see Simmons v. United Mortg.
& Loan Inv.. LLC, 634 F.2d 754, 758 (4th Cir. 2011), it would be unfair to impose a significantly
more stringent initial barrier than for ordinary plaintiffs seeking to join a litigation under Federal
Rule of Civil Procedure 20.2 For these reasons, the Court adopts the two-step process and the
lenient standard at the notice stage.
B. Evidence Relating to Senior Staffing Recruiters
In challenging the Plaintiffs' showing that the proposed class is similarly situated, Maxim
focuses primarily on the differences between the roles of recruiters from the two primary lines of
business: Homecare and Staffing. According to Maxim, these lines of business are different in
Thc fact that 29 U.S.C. 9 216(b) does not describe any judicial role in certifying an FLSA
collective action has been cited in support of the argument that any conditional certification
process, including the two-step process, conflicts with the language of the statute, and that
joining an FLSA collective action should be governed by Rule 20 (permissive joinder) and Rule
21 (misjoinder). See Scott A. Moss & Nantiya Ruan, The Second-Class Class Action: How
Courts Thwart Wage Rights by Misapplying Class Action Rules, 61 Am. U. L. Rev. 523, 533-34,
570, 582 (2012).
2
9
that they serve different segments of the healthcare industry, with Homecare recruiting
healthcare staff to work out of individual patients' homes and with Stalling placing healthcare
workers in medical and other institutional facilities. This distinction is not a new one. In prior
FLSA collective actions by Maxim recruiters filed in federal courts, Plaintiffs have typically
sought or obtained conditional certification only as to Homecare Recruiters or Staffing
Recruiters. See, e.g., Wilson v. Maxim Healthcare Services, Inc., No. C14-789RSL, 2014 WL
7340480 (W.O. Wash. Dec. 22, 2014) (conditionally certifying a class of Staffing Recruiters);
Stelmachers
v. Maxim Healtheare Services, Inc., No. 1:13-CV-1062-RLV (N.D. Ga. Aug. 5,
2013) (conditionally certifying a class of Homecare Recruiters), ECF No. 45; Betancourt v.
Maxim Healthcare Services, Inc., No. 10 C 4763, 2011 WL 1548964 (N.D. Ill. Apr. 21, 2011)
(conditionally certifying a class of Staffing Recruiters).
In Stelmachers, the court declined to certify conditionally a class of "[a]ll current and
fonner salaried Recruiters (including Healthcare Recruiters, Homecare Recruiters, Staffing
Recruiters, and Senior Recruiters) who were employed by Maxim Healthcare Services, Inc." and
instead certified a class of only Homecare Recruiters. Stelmachers, NO.1: l3-CV-I 062-RLV slip
op. at 2. The court reasoned that because the evidence submitted was limited to the experiences
of Homecare Recruiters from a specific subdivision, and none of the plaintiffs had attested to
"any knowledge regarding the job duties of the recruiters in other subdivisions in Homecare
Division" or "any knowledge regarding recruiters in other divisions," it would be inappropriate
to conditionally certify all Recruiters. Id. slip op. 6-7. As a threshold matter, Maxim challenges
the scope of the evidence based on the fact that, as in Stelmachers, none of the submitted
declarations came from Senior Staffing Recruiters.
to
Plaintiffs' submission of evidence consists of II declarations from named plaintiffs or
opt-in plaintiffs, 21 declarations from other fonner Maxim recruiters submitted in other FLSA
collective action cases, and a position description for Healthcare Recruiters. Notably omitted
from these declarations are any by Senior Staffing Recruiters or any substantial allegations that
Senior Staffing Recruiters are similarly situated.
Plaintiffs' 11 declarations from Senior
Recruiters do not specify whether they worked in the Homecare or Staffing lines of business.
But Maxim's Vice President of Strategic Sales and Operations stated that, having reviewed
Maxim's internal human resources records, all 11 declarants worked in Homecare offices.
Without any evidence to rebut the Vice President's assertion, the Court finds that these 11
declarants worked in Homecare offices and that these declarants' personal accounts relate to the
work of Senior Homecare Recruiters, not Senior Staffing Recruiters.
Each of the declarations contains the same general statements that "while working at
Maxim, I got to know other Senior Recruiters and became familiar with their job
responsibilities," that "[t}hese individuals perfonned the same or similar job duties and worked
numerous hours in excess of 40 hours a week without overtime compensation," and that "[fJrom
my experience, I know that all Senior Recruiters were subjected to the same practice and
procedures." See, e.g., Alderoty Decl.
6. However, because the declarants all worked in
Homecare offices, and do not state that they have had experience or interactions with Senior
Staffing Recruiters, the Court does not consider these broad statements to provide substantial
allegations relating to whether Senior Staffing Recruiters are similarly situated with others.
Beyond these II declarations, Plaintiffs submitted photocopies of declarations from four
other FLSA collective action cases against Maxim: seven declarations of "healthcare recruiters"
from Ene v. Maxim Healthcare Services, Inc., No. 09-cv-02453 (S.D. Tex. Nov. 2, 2012), four
II
declarations
of "healthcare
recruiters"
from Stelmachers,
NO.1: 13-CV -1062-RL V, five
declarations of Staffing Recruiters from Betancourt, 2011 WL 1548964, and five declarations of
Staffing Recruiters from Wilson, 2014 WL 7340480.3
These declarations, however, do not
address whether Senior Staffing Recruiters are similarly situated. None of them are from Senior
Staffing Recruiters, nor do they claim to know anything about Senior Staffing Recruiters' job
duties.
In fact, none of them are from Senior Recruiters or aver any knowledge of Senior
Recruiters generally.
They all specifically slate that their position as Recruiters was "entry
level." See, e.g., Wilson Decl. Ex. U, ECF No. 31-22. Even the boilerplate sentence asserting
familiarity with other Maxim employees only claims familiarity with "other Staffing Recruiters"
or "other Recruiters."
Likewise, the position description submitted by Plaintiffs is for the job of
"Healthcare Recruiter I Entry Level Sales Management - Staffing," not for the position of a
Senior Recruiter, whether for Homecare or Staffing.
The only evidence before the Court that relates to conditional certification of Senior
Slaffing Recruiters consists of two declarations submitted by Maxim, one by a Senior Slaffing
Recruiter and one by a Senior Hybrid Recruiter.
In the first place, it is unclear whether a
defendant's submitted declaration constitutes a plaintiffs "substantial allegation" for conditional
certification.
See Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546-47
(6th Cir. 2006)
(holding that "the plaintiff must show ... that his position is similar ... to the positions held by
the putative class members") (emphasis added) (citations omitted); Syrja, 756 F. Supp. 2d at 686
(holding that the question is "whether the plaintiffs have demonstrated
that potential class
members are 'similarly situated''') (quoting Camper v. Home Quality Mgmt., Inc., 200 F.R.O.
These declarations, some of which are photocopied in a manner that renders them barely
legible, retain the case captions from their original cases, are dated and signed as of the time they
were submitted in those cases, and provide no indication that the declarants were even aware that
their declarations would be used in this case.
3
12
516, 519 (D. Md. 2000).
At any rate, the two declarations tend to show only that Senior
StaJling Recruiters are not similarly situated to Senior Homecare Recruiters.
In particular,
Andrew Komoroski, who worked in a Hybrid office, claimed that "recruiting
for in-patient
Homecare positions was totally different from recruiting for institutional staffing positions."
Komoroski Dec!. '4, EeF No. 41-5.
See
As an example, Komoroski stated that while Clinical
professionals made final hiring decisions for Homecare clients, Recruiters made final hiring
decisions for Staffing clients.
See id. This distinction directly relates to their discretionary
authority, a key consideration in the FLSA administrative exemption that Plaintiffs seek. See 29
C.F.R.
S
541.200 (2015) (defining the administrative exemption as someone whose "primary
duty includes the exercise of discretion").
Thus, Plaintiffs have not put before the Court any evidence on the work of Senior
Staffing Recruiters, much less evidence to show that they are similarly situated with other Senior
Recruiters.
Given Plaintiffs'
explanation
that this case arose because Senior Homecare
Recruiters were not sent notice of the Stelmaehers litigation even after the court conditionally
certified a class of Homecare Recruiters generally, it is not surprising that Plaintiffs were all
Senior Homccare Recruiters, and that their submitted declarations relate to such work. Notably,
Senior Staffing Recruiters are already included in a conditionally certified collective action on
behalf of Staffing Recruiters in Wi/son, 2014 WL 7340480, at .8.
But the connection of this
case to Stelmaehers. where the court limited the class to Homecare Recruiters in the absence of
evidence from Staffing Recruiters, makes it inexplicable that Plaintiffs would seek a broad class
of all Senior Recruiters without submitting any declarations from any Senior Staffing Recruiters.
The Court does not decide whether Senior Homecare Recruiters and Senior Staffing
Recruiters are similarly situated for purposes of an FLSA collective action. They may, in fact,
13
be similarly situated.
But where Plaintiffs have not submitted any evidence regarding the work
of Senior Staffing Recruiters, and did not even submit the position description for either a Senior
Recruiter or a Senior Staff Recruiter, the Court concludes that it lacks sufficient evidence, even
under the lenient standard, to evaluate this question at all. See Stelmachers, NO.1: 13-CV-1062RLV (conditionally certifying only Homecare Recruiters because "neither the plaintifTnor opt-in
plaintiffs aver any knowledge regarding the job duties of the recruiters in the other subdivisions
in Homecare Division, nor aver any knowledge regarding recruiters in the other divisions").
Therefore, the Court will not certify a broad class of all Senior Recruiters, including Senior
Staffing Recruiters, and will instead evaluate only whether it can conditionally certify a class of
Senior Homecare Recruiters.
C. Similarly Situated
Plaintiffs have asserted, and Maxim does not dispute, that all Senior Homecare Recruiters
are subject to a common policy or plan of classifying them as administrative personnel who are
exempt from the overtime pay requirement of the FLSA.
So the key question is whether the
prospective class members are sufficiently "similarly situated" with respect to this common
policy to warrant issuance to them ofa notice of this litigation.
The FLSA states that employees may sue their employer for failure to pay overtime "for
and in behalf of ...
themselves and other employees similarly situated."
29 U.S.C. ~ 216(b).
While the Fourth Circuit has not provided guidance on the meaning of "similarly situated," other
courts have acknowledged the broad discretion district courts have to discern its meaning.
See
Thiessen, 267 F.3d at 1105 (finding it preferable for district couets to determine whether
plaintiffs are "similarly situated" on an ad hoc basis); Mooney, 54 F.3d at 1216 (finding it
"unnecessary"
to decide
how district courts determine
14
whether
plaintiffs
are "similarly
situated"); Randolph, 7 F. Supp. 3d at 575 (finding that whether plaintiffs are similarly situated is
"left to the sound discretion of the district court") (citations omitted). Determining whether
members of the purported class are similarly situated is fact-specific, and the factors courts
consider vary from case to case. Compare Randolph, 7 F. Supp. 3d at 576-77 (considering
whether employees were subject to a single set of employer standards and whether the employer
universally did not pay overtime), and Syrja, 756 F. Supp. 2d at 687-88 (considering whether
employees set their own schedule, whether case assignments vary between employees, and
whether the employer universally did not pay overtime, among other factors), wilh Betancourt,
2011 WL 1548964 at *9-10 (considering similarities in Maxim Staffing Recruiters' job titles and
position descriptions, ability to negotiate pay rates. and ability to discipline outside employees).
and Wilson, 2014 WL 7340480 at *8 (considering similarities in Maxim Staffing Recruiters'
core duties "principally in terms of vetting candidates for hiring").
Under the lenient standard of the notice stage. the Court finds that Plaintiffs have made
substantial allegations in their Complaint, Motion for Conditional Certification, and attached
declarations that Senior Homccare Recruiters are similarly situated. First, Plaintiffs have shown
that Senior Homecare Recruiters share similar job duties. See Betancourt, 2011 WL 1548964, at
*9 (finding similar job duties relevant in conditionally certifying Maxim StatTIng Recruiters);
Wi/san, 2014 WL 7340480, at '8 (same); Stelmachers, No. 1:13-CV-1062-RLV, slip op. 6
(finding similar job duties relevant in conditionally certifying a class of Maxim Homccarc
Recruiters). Plaintifl"s' 11 declarants all stated that, as Senior Homecare Recruiters, their job
duties included (1) recruiting potential candidates from various internet sites and cold calls; (2)
assisting in the placement process for nurses by screening potential candidates regarding their
minimum qualifications and fitness for employment in accordance with Maxim's standards, (3)
15
answering the phone, (4) inputting payroll hours for billing purposes, (5) assisting in scheduling
the work, (6) contacting insurance companies and schools for insurance authorization, (7)
participating in sales calls and site visits with Accounts Managers, and (8) participating in
orientation of new employees to presen! Maxim's policies. See, e.g., Alderoty Decl. ~ 2. The
declarants also stated that, while they facilitated the hiring process, they "did not have the
discretion, judgment, or ability to make decisions concerning hiring, firing, job performance,
discipline, or specific job duties," Id ~ 3. Nor did they have the authority to negotiate the terms
of placement or the fees involved with placement. Rather, they were to report to their Account
Manager for such decisions.
Beyond job duties, Senior Homecare Recruiters also bear strong similarities in terms of
their work schedule and pay. Plaintiffs' declarations state that they generally worked between
8:00 a.m. and 6:00 p.m., often without a lunch break. They also state that they were all paid a
salary and a small commission, but did not receive overtime compensation. They were often
required to be "on-call" outside of normal business hours. Id
2.
Maxim disputes the similarity of Senior Homecare Recruiter job duties and work
arrangements, arguing that duties vary based on the type of placement, customer needs, and level
of supervision.
To support this assertion, Maxim has submitted declarations to identify
differences among Senior Recruiters, particularly differences between duties in the Homecare
and Staffing business lines. However, Maxim's own declarations reveal that there are strong
similarities among Senior Homecare Recruiter job duties. Compare id.
required me to be on call 24 hours per day"), with Manson Decl.
2 ("Maxim often
10, ECF No. 41-6 (stating that
Senior Recruiters' job duties included being "on-call" when he was the only Recruiter in the
office); compare also Alderoty Decl. fI 2 (stating that Senior Recruiters' job duties included
16
"inputting payroll for billing purposes"), with Komoroski Decl.
18 (stating that Senior
Recruiters' job duties included "doing office payroll"). Moreover, Maxim's description of their
pay arrangements largely corroborates Plaintiffs' declarations concerning pay. See Goldberg
Dec\.
39, ECF No. 41-3 (stating that "pay now includes a base salary, plus quarterly and annual
incentive bonuses calculated on both an office and individual basis").
Maxim's declarations point out several differences among Senior Homecare Recruiters
working in different offices and subdivisions, such as the type of patients with whom they seek
to place healthcare workers, the level of skill of the workers to be placed, and how they conduct
interviews. To the extent that there arc individualized differences based on the size of the office,
geography, or other factors, these differences are nevertheless consistent with Plaintiffs' general
statement of their duties.
At the notice stage, courts recognize that there will always be
individualized differences among the purported class. See Comer, 454 FJd at 547 (stating that
at the notice stage, plaintiffs must show only that their positions are "similar, not identical, to the
positions held by the putative class members"); Butler v. DirectSAT USA, LLC, 876 F. Supp. 2d
560, 570 (D. Md. 2012) (noting that "[i]ndividual circumstances are inevitably present in a
collective action"); Rundolph, 7 F. Supp. 3d at 576-77 (quoting Butler); Frank v. Gold'n Plump
Poultry, Inc., No. 04-CV-1018 (PJSIRLE), 2007 WL 2780504, at '4 (D. Minn. Sept. 24, 2007)
("If one zooms in close enough on anything, differences will abound ...
But plaintiffs' claims
need to be considered at a higher level of abstraction."). While the cited ditTerences may reveal
that Senior Homeeare Recruiters and their individual offices are not clones of one another, they
17
do not refute Plaintiffs' substantial allegations that Senior Homecare Recruiters arc similarly
.
situate d .4
Finally, Maxim argues that the Court should not conditionally certify a class of Senior
Homecare Recruiters, no matter their office or subdivision, because Plaintiffs' misclassification
claims would require an individualized inquiry that belies a class-wide decision.
Citing the
factors for whether an employee meets the FLSA administrative exemption and United States
Department of Labor opinion letters, Maxim argues that to decide whether Senior Homecare
Recruiters meet that exemption, the Court would have to perfonn a case-by-case analysis of
whether each employee had sufficient discretion and independent judgment.
However, as
previous courts have observed, these are the sort of merit-based questions courts are not to
engage in at the notice stage. See Hipp, 252 F.3d at 1218 (observing that courts usually make a
"factual detennination"
on the similarly situated question after a motion for decertification);
Essame, 847 F. Supp. 2d at 826 (finding the employer's argument that the employees'
factual
circumstances were dissimilar was flawed because "it delves too deeply into the merits of the
dispute" and that "such a steep plunge is inappropriate for such an early stage of a FLSA
collective action").
Under the lenient standard of the notice stage, the Court's
role is to
determine only whether the purported class is similarly situated enough to receive notice of the
litigation. Once discovery is complete, should Maxim move for decertification the Court will be
Although not dispositive, it is significant to note that these differences did not prevent Maxim
from classifying all Senior Homecare Recruiters as exempt under the FLSA in a categorical
manner, without any individualized detennination of whether they met the definition of an
administrative employee. See Delgado v. Ortho-McNeil, Inc., No. SACV07-263CJCMLGX,
2007 WL 2847238, at '2 (C.D. Cal. Aug. 7, 2007) (observing that it "is somewhat disingenuous .
. . for Defendants to argue that they should be pennitted to treat all sales representatives as one
group for purposes of classifying them as exempt, but that this Court can only detennine the
validity of that classification by looking to the specific job duties of each individual sales
rcpresentati ve").
4
18
better positioned to make a factual determination on whether individualized differences are
significant enough to thwart the collective action. See Betancourt, 2011 WL 1548964. at .4
(observing that the "burden of preliminary certification is light because the risk of error is
insignificant: should further discovery reveal that the named positions, or corresponding claims,
are not substantially similar the defendants will challenge the certification"). Thus. at the notice
stage. the Court finds that Plaintiffs have made substantial allegations that Senior Homecare
Recruiters are similarly situated.
D. Geographic Scope
Maxim also argues that even if some Senior Homecare Recruiters can be deemed
"similarly situated." the conditional certification should not extend to a nationwide class because
the submitted declarations did not include representatives from most or all of the states. Courts
have certified a nationwide class with declarations fromjust a few states. See, e.g., Wilson, 2014
WL 7340480, at .4, .8 (conditionally certifying a nationwide class of Senior StatTIngRecruiters
with four declarations concerning three offices in two states); Sanchez v. Sephora USA, Inc., No.
11-03396 SBA, 2012 WL 2945753, at '3-5 (N.D. Cal. July 18,2012) (conditionally certifying a
nationwide class with four declarations); Gilbert v. Citigroup, Inc.• No. 08-0385 SC, 2009 WL
424320, '4-5 (N.D. Cal. Feb. 18,2009) (conditionally certifying a nationwide class with five
declarations).
Here. Plaintiffs have submitted declarations from Senior Homecare Recruiters in
California, Kansas, Maryland, Missouri, Nevada, New York. and Oregon. Moreover, there is
every indication that Senior Homecare Recruiters were subject to a nationwide policy that
employees in their position were classified as exempt from the FLSA overtime requirement. not
a policy that was particular to the office in which they worked. Although Maxim argues that
19
there are geographical variations that result in differences in the type of clients and the number of
employees in each particular office, these individualized differences do not contradict the shared
experiences of Senior Homecare Recruiters in 11 different states, and do not provide a basis, at
the notice stage, to limit the distribution of the class notice. The Court therefore finds that the
submitted declaldtions provide a sufficient basis to conditionally certify a nationwide class.
III.
Maxim's Motion to Strike Claims
In a sepaldte motion, Maxim requests that the Court strike, stay, or transfer two groups of
Plaintiffs' claims:
(1) the claims of Senior Staffing Recruiters, because that class of potential
plaintiffs is included among the class of plaintiffs covered by an earlier filed collective action in
the United States District Court for the Western District of Washington, and (2) claims alleging
violations of Kansas, Nevada, and New York state laws, because Maxim has submitted a
declaration stating that none of the named plaintiffs who worked in those states ever held the
position of Senior Recruiter.
A.
Senior Staffing Recruiters
Maxim first seeks to strike, or in the alternative stay or transfer, Senior Staffing Recruiter
claims to the Western District of Washington, where the court has already conditionally certified
a class of all Staffing Recruiters, including Senior Staffing Recruiters.
7340480, at *8.
See Wilson, 2014 WL
Indeed, the Wilson plaintiffs have already sent court-approved
notice to all
Senior Stafiing Recruiters, and to date 29 Staffing Recruiters have opted into that class. See,
e.g, Acuna Consent to Join, Wilson, No. 14-0789,2014
as discussed above, this Court will conditionally
WL 7340480, ECF No. 60-1. Because,
certify only a class of Senior Homecare
Recruiters, not Senior Staffing Recruiters, Maxim '5 Motion as to this issue is denied as moot.
20
B.
Kansas, Nevada, and New York Claims
Maxim also moves to strike Plaintiffs' class action claims alleging violations of Kansas,
Nevada, and New York state laws on the grounds that there are no class representatives
those states. See Kan. Stat. Ann. 9 44-313, ef seq.; Nev. Rev. Stat. Ann. 9608.005,
from
el seq.; 12
NYCRR pt. 142, et seq. Under Federal Rule of Civil Procedure 23, class representatives must be
part of the same class, possess the same interest, and suffer the same injury as the class members.
See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216 (1974); Gunnells v.
Heallhplan Services, Inc., 348 F.3d 417, 425 (4th Cir. 2003).
According to Maxim, Anna Aguirre, Brandon Kaznica, and Phillip Swope, the three
named plaintiffs from Nevada, New York, and Kansas respectively, were not Senior Recruiters,
and therefore cannot serve as class representatives for those state law claims. See Budash Dec!.
1
3, ECF No. 44-7 (declaration of the Human Resources Information System Team Lead, who has
"personal knowledge of Maxim's
employment data and records").
Plaintiffs disagree and
reference the declarations of Aguirre, Kaznicka, and Swope, in which they state that they were,
in fact, Senior Recruiters.
See Aguirre Oed
2; Kaznica Decl. Ex. K
';l
2, ECF No. 31-13;
Swope Decl. Ex. 0 ~ 2, ECF No. 31-16. This is precisely the kind of factual dispute that the
Court will be in a better position to resolve once discovery is complete.
Schlesinger,
See Goodman v.
584 F.2d 1325, 1332 (4th Cir. 1978) (holding that district court improperly
dismissed class allegations prematurely when discovery had not occurred and the factual record
was incomplete).
Therefore, the Court denies Maxim's Motion to Strike as to the Kansas,
Nevada, and New York state law claims.
21
IV.
Maxim's Motion to Strike Plaintiffs Proposed Notice
Finally, Maxim has moved to strike Plaintiffs'
members and has instead proposed a different notice.
proposed
notice to potential class
Plaintiffs have agreed to adopt some of
Maxim's proposed language in its amended notice, but there remain several differences between
the parties' versions.
District courts "have the discretionary authority to oversee the notice-
giving process," including determining the contents ofa notice to a conditional class. Hoffmann.
LaRoche, 493 U.S. at 172-73 ("By monitoring preparation and distribution of the notice, a court
can ensure that it is timely, accurate, and informative."); Butler, 876 F. Supp. 2d at 574 (finding
that district courts have "broad discretion regarding the 'details' of the notice sent to potential
opt.in plaintiffs").
The parties disagree on the following issues:
(l) the class of individuals to whom the
notice will be sent (the "Notice Recipients"); (2) the contents of the notice; (3) the type of
contact information for Notice Recipients to be provided to Plaintiffs; and (4) the deadlines
associated with the notice.
A.
Recipients of the Notice
Maxim first requests that the Court exclude from the list of Notice Recipients any Senior
Recruiters who received a notice in the separate class action against Maxim in the Western
District of Washington.
See Wilson, 2014 WL 7340480.
As stated above, the Court
conditionally certifies a class of only Senior Homecare Recruiters, which would not include
Senior Staffing Recruiters.
Because the class in Wilson is limited to Staffing Recruiters and
Senior Staffing Recruiters, the list of Notice Recipients here necessarily will not include any
personnel who received notice in Wilson. See id. at .8. Therefore, this issue is moot.
22
Maxim also seeks to exclude any Senior Recruiters who participated
in an earlier
settlement of multiple FLSA collective action cases. See Judgment and Order of Final Approval
Granting Plaintiffs' Motion for Final Approval of Settlement and Certification of the Settlement
Class, Ene v. Maxim Jleailhcare Services, Inc., No. 4:09-CV-02453 (S.D. Tex. Nov. 2, 2012),
ECF No. 180 ("Ene Settlement").
Generally, court-approved
judicata effect as litigated judgments.
settlements have the same res
See Hoxworth v. Blinder, 74 F.3d 205, 208 (10th Cir.
1996); In re Medomak Canning, 922 F.2d 895, 900 (1 5t Cir. 1996).
Plaintiffs do not dispute that individuals subject to the Ene Settlement do not have a
claim for back wages relating to work pre-dating the November 2, 2012 Ene Settlement Order,
but note that they may have claims relating to post-settlement violations. Therefore, notice may
not be sent to any current or former Senior Homecare Recruiters who participated in the Ene
Settlement and did not work for Maxim after November 2, 2012.
To the extent that Senior
Homecare Recruiters who participated in the Ene Settlement worked for Maxim after that date,
they should be included on the list of Notice Recipients, and they may be sent the Notice. Their
claims, however, will be limited to those arising from work occurring after November 2, 2012.
Finally, Maxim seeks to limit notice to Senior Recruiters who were employed in the 11
offices where the named plaintiffs worked.
As discussed above, the Court has determined that
Plaintiffs have made substantial allegations that Senior Homecare Recruiters nationwide are
similarly situated for purposes of this collective action. See supra Section lI.D. Therefore, the
Notice may be sent to all Senior Homecare Recruiters, regardless of the location of their current
or fonner office.
23
B.
Contcnt of the Notice
The parties also disagree on the content of the Notice. Maxim opposes inclusion of the
case caption on the Notice, opposes language that gives the recipients the impression that they
are necessarily entitled to overtime pay, proposes particular language on the Court's position and
Maxim's position relating to Plaintiffs' claims, opposes Plaintiffs' statement relating to the right
to be free from retaliation, and proposes language describing the fee arrangement with plaintiffs'
counsel and noting that plaintiffs could be liable to Maxim for costs if Maxim prevails. Maxim
also opposes the reference to the beginning of the collective action time period as three years
ago, when the statute of limitations for non-willful violations of the FLSA is two years.
Upon reviewing both parties' proposed notices, the Court will authorize the use of the
Notice attached to the accompanying Order. This Notice includes the case caption, which has
been included in other similar notices. See, e.g., Notice of Right to Opt-In to Lawsuit, Wi/son,
No. 14-0789,2014
WL 7340480, ECF No. 59. It adopts Plaiotiffs' proposed language regarding
the possibility of entitlement to overtime pay and the right to be free from retaliation, as well as
Maxim's proposed language on the positions of Maxim and the Court on this litigation, as the
most fair, accurate, and non-prejudicial ways offered to convey the subject matter at issue.
It
does not include the requested language regarding fee arrangements and potential liability to
Maxim as unnecessary and potentially unfair in that it may inappropriately deter recipients from
opting in to the case.
The Notice also includes the three-year time period for the collective action. Because the
Court has yet to make a determination on whether there was a willful violation of the FLSA,
which would extend the statute of limitations from two to three years, see 29 U.S.c.
9
255(a)
(2012), there is no basis to exclude the third year at this time. It would be more efficient to issue
24
a broader notice now and limit claims later, than to have to issue a supplemental notice upon any
later finding of willfulness.
C.
Contact Information for Notice Recipients
Although
Maxim agrees to provide
the names and mailing
addresses
of Notice
Recipients, it objects. for privacy reasons, to providing Plaintiffs with their e-mail addresses and
telephone numbers.
In order to facilitate the timely transmission of the Notice, the Court will
require Maxim to produce the Notice Recipients'
addresses.
names, mailing addresses,
and e-mail
See, e.g., Wilson, 2014 WL 7340480, at *9 (ordering Maxim to produce class
members' e-mail addresses).
telephone numbers.
Maxim need not, however. provide Senior Homecare Recruiters'
Courts often require movants to show a "special need" in order to grant
requests for telephone numbers. See Calderon v. Geico General Ins. Co., No. RWT IOcv1958,
2011 WL 98197, at '9 (D. Md. Jan. 12,2011); Arevalo v. D.J. 's Undergroand, Inc., No. DKC
09-3199, 2010 WL 4026112, at '2 (D. Md. Oct. 13, 20 I0). Speculation that some potential optin plaintiffs may not receive the initial mailing or e-mail is insufficient to demonstrate such a
special need. See Arevalo. 2010 WL 4026112, at *2. Moreover, telephone notification runs the
risk that certain Notice Recipients will receive information about the case that differs in some
way from the contents of the Notice. Thus, Maxim need not provide telephone numbers of the
Notice Recipients absent a showing of special need.
D.
Deadlines
Maxim has asked for 30 days to compile and produce the contact information for the
Notice Recipients, as compared to the 14 days requested by Plaintiffs.
Because the statute of
limitations continues to run on the claims of potential opt-in plaintiffs, the Court will require
Maxim to produce the contact information within 21 days of the Order on this Motion.
25
Maxim
requests that the opt-in period be limited to 45 days, as opposed to the 90 days requested by
Plaintiffs.
Plaintiffs have stated that 45 days would be acceptable if e-mails were provided.
Because the e-mail Notice should reach Senior Homecare Recruiters faster than first-class mail,
the deadline to opt-in will be 45 days after the issuance of the Notice.
For the above reasons, the Motion to Strike Notice is granted in part and denied in part,
and the Court authorizes the use of the Notice attached to the accompanying Order.
CONCLUSION
For the foregoing reasons, Plaintiffs'
Motion for Conditional Class Certification
is
GRANTED IN PART and DENIED IN PART. The Court conditionally certifies a class of all
current and former Senior Homecare Recruiters who were employed by Maxim Healthcare
Services, Inc. at any time between September 23, 2012 and the present.
Maxim's Motion to
Strike Oeclarations is DENIED. Maxim's Motion to Strike Collective and Class Action Claims
is DENIED.
Maxim's Motion to Strike Plaintiffs' Proposed Notice is GRANTED IN PART and
DENIED IN PART. Maxim is required to produce to Plaintiffs within 21 days of the date of this
Order the names. mailing addresses, and e-mail addresses for all current and former Senior
Homccare Recruiters who were employed by Maxim at any time between September 23, 2012
and the present.
Within seven days of receipt of such information. Plaintiffs shall issue the
Notice attached to the accompanying Order, which requires potential class members to opt-in as
plaintiffs within 45 days of the issuance of the Notice. A separate order follows.
Date: September 23, 2015
"S O~
THEODORE D. C
United States Distr2u:
26
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