JONES et al v. HEALTHCARE STAFFING/SILVER CARE

Filing 81

OPINION filed. Signed by Judge Noel L. Hillman on 12/16/2015. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TYMECO JONES, IESHA BULLOCK,
and TEAIRRA PIZARRO, on
behalf of themselves and
those similarly situated,

Civil No. 13-7910 (NLH/AMD)

OPINION

Plaintiffs,
v.
SCO, SILVER CARE OPERATIONS
LLC d/b/a ALARIS HEALTH AT
CHERRY HILL,
Defendant.

APPEARANCES
JUSTIN L. SWIDLER
MATTHEW D. MILLER
SWARTZ SWIDLER, LLC
1101 KINGS HWY N, STE. 402
CHERRY HILL, NJ 08034
On behalf of plaintiffs
STUART WEINBERGER
GOLDBERG & WEINBERGER LLP
630 THIRD AVENUE
18TH FLOOR
NEW YORK, NY 10017
On behalf of defendant
HILLMAN, District Judge
Presently before the Court is defendant’s motion to
reconsider the Court’s September 22, 2015 Opinion and Order
granting plaintiffs’ motion to conditionally certify their
collective action claims for defendant’s alleged violations of the

federal Fair Labor Standards Act, and denying defendant’s crossmotion to dismiss or stay the action pending arbitration.
Defendant also requests that this Court grant their application
for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) should
the Court deny their motion for reconsideration.

For the reasons

expressed below, defendant’s motion will be granted as to the
modification of one term in the conditionally certified class, but
denied in all other respects.
BACKGROUND & DISCUSSION
Plaintiffs are certified nursing assistants employed by
nursing home defendant, SCO, Silver Care Operations LLC d/b/a
Alaris Health at Cherry Hill.

They claim that defendant violated

the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.,
and New Jersey’s Wage and Hour Law and New Jersey’s Wage Payment
Law, when it failed to properly pay them for hours they worked in
excess of 40 hours per week, and by deducting thirty minutes of
paid time for meal breaks during over-night shifts, when
plaintiffs rarely, if ever, took an uninterrupted break during
their normal shifts.
In the Court’s September 22, 2015 Opinion, the Court granted
plaintiffs’ motion for conditional certification of their FSLA
collective action, and rejected defendant’s argument that the
parties’ collective bargaining agreement (“CBA”) required the
arbitration of plaintiffs’ claims.
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The Court held that

plaintiffs’ claims are FLSA-based violations that are distinct
from claims that contend the terms of the CBA have been breached.
The Court therefore determined that plaintiff’s claims are not
subject to the CBA’s arbitration provision.

The Court also found

that plaintiffs readily met the “fairly lenient standard” to
conditionally certify two collectives of employees: one related to
the overtime pay calculation and the other related to the meal
break policy.
In its current motion, 1 defendant argues that the Court
incorrectly found that the wage issues do not involve the
interpretation of the CBA and are not required to go to
arbitration.

Defendant asks the Court to reconsider that

decision, or certify the issue for interlocutory appeal. 2

1

A motion for reconsideration may be treated as a motion to alter
or amend judgment under Fed. R. Civ. P. 59(e), or as a motion for
relief from judgment or order under Fed. R. Civ. P. 60(b), or it
may be filed pursuant to Local Civil Rule 7.1(i).
2

During the pendency of defendant’s motion for reconsideration,
the Third Circuit issued a decision in a FLSA case, which, in a
supplemental letter to the Court, defendant contends impacts the
Court’s decision of its motion for reconsideration. (Docket No.
79.) The Court disagrees. In Babcock v. Butler County, 806 F.3d
153, 155 (3d Cir. 2015), the Third Circuit was tasked with
determining whether a portion of time for the Butler County Prison
corrections officers’ meal periods was compensable under the FLSA.
The Third Circuit upheld the district court’s dismissal of the
plaintiffs’ complaint when it applied the “predominant benefits
test” to determine that the corrections officers were not
primarily engaged in work-related duties during meal break
periods. Babcock, 806 F.3d at 156. The Third Circuit also
observed that the parties’ CBA provided for appropriate
compensation if the officers actually worked during the meal
break. Id. at 157-58. The facts, analysis, and procedural
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The purpose of a motion for reconsideration “is to correct
manifest errors of law or fact or to present newly discovered
evidence.”

Max's Seafood Cafe ex rel. Lou–Ann, Inc. v. Quinteros,

176 F.3d 669, 677 (3d Cir. 1999).

A judgment may be altered or

amended only if the party seeking reconsideration shows: (1) an
intervening change in the controlling law; (2) the availability of
new evidence that was not available when the court granted the
motion for summary judgment; or (3) the need to correct a clear
error of law or fact or to prevent manifest injustice.

Id.

In

reviewing defendant’s motion, the Court does not find that any of
these three circumstances are presented here.
Moreover, it is apparent that defendant simply disagrees with
the Court’s decision to not rule in its favor, and that it
presents a re-argument of its positions taken in opposition to
conditional certification and in support of its motion to stay
pending arbitration.

Re-argument and disagreement are not

sufficient bases for reconsideration.

See P. Schoenfeld Asset

Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J.

posture of Babcock are inapposite to the case here. This case
concerns the conditional certification of a class of plaintiffs
who allege that they were not compensated for work they performed
during their meal breaks, as opposed to Babcock, which concerned a
motion to dismiss based on insufficient allegations in a complaint
regarding an unpaid fifteen minute period during which the
officers did not work but had to remain on-call. Consequently,
Babcock does not affect this Court’s resolution of defendant’s
instant motion.

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2001) (providing that a motion for reconsideration may not be used
to re-litigate old matters or argue new matters that could have
been raised before the original decision was reached); United
States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J.
1999) (mere disagreement with the Court will not suffice to show
that the Court overlooked relevant facts or controlling law).
Relatedly, the issues raised in defendant’s opposition to
conditional class certification and its cross-motion to dismiss or
stay pending arbitration do not rise to the level that warrants an
interlocutory appeal.

A recent FSLA collective action case that

concerned a defendant’s request for certification of an
interlocutory appeal sets forth the interlocutory appeal standard:
Interlocutory appeals are generally disfavored because
“[p]ermitting piecemeal, prejudgment appeals ... undermines
‘efficient judicial administration’ and encroaches upon the
prerogatives of district court judges, who play a ‘special
role’ in managing ongoing litigation.” Mohawk Indus. v.
Carpenter, 558 U.S. 100, 106 (1978) (quoting Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)). However,
28 U.S.C. § 1292(b) provides an avenue for interlocutory
relief if the court's order “(1) involve[s] a controlling
question of law, (2) offer[s] substantial ground for
difference of opinion as to its correctness, and (3) if
appealed immediately materially advance[s] the ultimate
termination of the litigation.” Katz v. Carte Blanche Corp.,
496 F.2d 747, 754 (3d Cir.1974) (internal quotations
omitted). Nevertheless, certification is “wholly within the
discretion of the courts, even if the criteria are present.”
Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976).
Accordingly, certification for interlocutory review is to be
granted sparingly because only “exceptional circumstances
justify a departure from the basic policy of postponing
appellate review until after the entry of a final judgment.”
Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978).

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Ruffin v. Avis Budget Car Rental, LLC, No. CIV.A. 11-01069-SDW,
2014 WL 4610421, at *1 (D.N.J. Sept. 15, 2014).

In Ruffin, the

court conditionally certified a collective action as to the
plaintiff’s claim that defendant misclassified employees as exempt
and failed to pay them for all hours worked or overtime
compensation.

Ruffin, 2014 WL 4610421, at *1.

The court denied

the defendant’s request for interlocutory appeal because it found
that the conditional certification issue did not arise out of a
genuine doubt as to the legal standard, such as conflicting
precedent, the absence of controlling law on a particular issue,
or novel and complex issues of statutory interpretation.

Id. at

*3 (citing Kapossy v. McGraw–Hill, Inc., 942 F. Supp. 996, 1001
(D.N.J. 1996)).
In this case, the Court does not find that the conditional
certification of the collective action or the determination that
plaintiffs’ claims are FLSA-based claims outside the scope of the
CBA to be borne out of genuine doubt as to the legal standard.
Defendant’s position has been advanced, and rejected depending on
the circumstances, by many other employers in FSLA cases for the
past 35 years.

See, e.g., Barrentine v. Arkansas-Best Freight

Sys., Inc., 450 U.S. 728, 745-46 (1981) (“[T]he FLSA rights
petitioners seek to assert in this action are independent of the
collective-bargaining process.

They devolve on petitioners as

individual workers, not as members of a collective organization.
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They are not waivable.

Because Congress intended to give

individual employees the right to bring their minimum-wage claims
under the FLSA in court, and because these congressionally granted
FLSA rights are best protected in a judicial rather than in an
arbitral forum, we hold that petitioners’ claim is not barred by
the prior submission of their grievances to the contractual
dispute-resolution procedures.”); Bell v. Se. Pennsylvania Transp.
Auth., 733 F.3d 490, 496 (3d Cir. 2013) (“Here, where the
Operators rely solely on their statutory, rather than their
contractual, rights to recovery, district courts have had no
difficulty concluding that such plaintiffs may proceed on their
FLSA claims without first seeking arbitration [pursuant to a
CBA].”)
Interlocutory relief also would not serve to advance the
matter, as arbitration may or may not provide a quick resolution.
See Barrentine, 450 U.S. at 743 (Because the “specialized
competence of arbitrators pertains primarily to the law of the
shop, not the law of the land,” many arbitrators may not be
conversant with the public law considerations underlying the FLSA.
FLSA claims typically involve complex mixed questions of fact and
law . . . .

These statutory questions must be resolved in light

of volumes of legislative history and over four decades of legal
interpretation and administrative rulings.

Although an arbitrator

may be competent to resolve many preliminary factual questions,
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such as whether the employee ‘punched in’ when he said he did, he
may lack the competence to decide the ultimate legal issue whether
an employee’s right to a minimum wage or to overtime pay under the
statute has been violated.”).
Overall, defendant’s “mere disagreement” with the Court’s
ruling does not constitute a “substantial ground for difference of
opinion” within the meaning of § 1292(b).
Inc., 942 F. Supp. 996, 1001 (D.N.J. 1996).

Kapossy v. McGraw-Hill,
Accordingly,

defendant’s request for interlocutory appeal must be denied.
One aspect of defendant’s motion may be granted.

The Court

quoted from plaintiff’s moving brief that “[f]or overtime pay
issues, plaintiffs’ proposed collective consists of all of
defendant’s non-exempt employees, who, during at least one (1)
workweek within the last three (3) years, worked over 40 hours and
earned differential pay and/or other shift premiums.”

(Sept. 22,

2015 Opinion, Docket No. 58 at 11, citing Pl. Br. Docket No. 34-1
at 23, “This collective action should be certified as to all of
Defendant’s non-exempt employees, who, during at least one (1)
workweek within the last three (3) years, worked over 40 hours and
earned differential pay and/or other shift premiums.”).

The Court

then granted the conditional certification of that group of
employees.
In its motion for reconsideration, defendant points out that
plaintiffs did not seek to certify “all of defendant’s non-exempt
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employees” as to the overtime pay issue, but rather only certified
nurse aides who were affected by this overtime practice.

This is

confirmed by plaintiffs’ brief in response to defendant’s motion
to dismiss or stay pending arbitration.

(Docket No. 51 at 13 n.3,

“Plaintiffs do not define the class to include ‘all hourly
employees’ as Defendants argue, but merely all CNAs who were
subject to Defendants’ illegal pay policies.”)

Because

plaintiffs’ complaint and all other references to the putative
class specifically concern CNAs, it is evident that the
description of the overtime pay class meant to only refer to
employees who were CNAs.

That is the class this Court

conditionally certified.

Moreover, it is important to precisely

define a class for many legal and practical reasons.

See Wachtel

ex rel. Jesse v. Guardian Life Ins. Co. of Am., 453 F.3d 179, 185
(3d Cir. 2006) (requiring “a readily discernible, clear, and
precise statement of the parameters defining the class or classes
to be certified,” because “[c]lear and complete treatment of both
the class and the class claims, issues, or defenses at the class
certification stage will unquestionably facilitate the timely
execution of . . . the court-supervised distribution of class
notice to class members”).

Consequently, the Court will modify

its September 22, 2015 Opinion to provide a clear and precise
statement of the parameters defining the classes that are
conditionally certified as follows:
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1.

For overtime pay issues, plaintiffs’ proposed collective

consists of all of defendant’s CNAs, who, during at least one (1)
workweek within the last three (3) years, worked over 40 hours and
earned differential pay and/or other shift premiums.
2.

For plaintiffs’ meal break policy issues, plaintiffs’

proposed collective consists of all of defendant’s CNAs, who,
during at least one (1) workweek within the last three (3) years,
worked a night shift and worked at least 40 hours.
The remainder of the Opinion will not be reconsidered.
CONCLUSION
For the reasons expressed above, defendant’s motion for
reconsideration or interlocutory appeal will be denied, except for
the clarification of the conditionally certified class concerning
overtime pay.

An accompanying Order will be entered.

Date: December 16, 2015
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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