IVANOVS et al v. BAYADA HOME HEALTH CARE, INC.

Filing 174

OPINION. Signed by Judge Noel L. Hillman on 8/6/2021. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SONYA IVANOVS and KATIE
HOFFMAN, on behalf of
themselves and all other
similarly situated employees,

1:17-cv-01742-NLH-AMD
OPINION

Plaintiffs,
v.
BAYADA HOME HEALTH CARE,
INC.,
Defendant.
APPEARANCES
MICHAEL JOHN PALITZ
SHAVITZ LAW GROUP, P.A.
830 3RD AVENUE, 5TH FLOOR
NEW YORK, NY 10022
GREGG I. SHAVITZ (admitted pro hac vice)
ALAN L. QUILES (admitted pro hac vice)
SHAVITZ LAW GROUP, P.A.
1515 SOUTH FEDERAL HIGHWAY, SUITE 404
BOCA RATON, FL 33432
On behalf of Plaintiffs
MICHAEL D. HOMANS
DAVID M. EISEN
HOMANS PECK LLC
TWO PENN CENTER
1500 JOHN F. KENNEDY BLVD., SUITE 520
PHILADELPHIA, PA 19102
On behalf of Defendant

HILLMAN, District Judge

On September 24, 2018, this Court granted Plaintiffs’
motion for the conditional certification of a collective action
arising from Defendant’s alleged violations of the Fair Labor
Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), with regard to
how Defendant classifies its Client Service Managers as exempt
from the minimum wage and overtime requirements of the FLSA.
Notice to potential opt-in plaintiffs was issued, 73 plaintiffs
“opted-in,” 1 and the parties engaged in extensive discovery.
Currently pending before the Court is Plaintiffs’ motion for
final certification of their collective action, and Defendant’s
motion to decertify the collective action. 2
In contrast to a Fed. R. Civ. P. 23 class certification in
which plaintiffs must “opt-out” of the class, in an FLSA
collective action, plaintiffs must “opt-in.” Jones v. SCO,
Silver Care Operations LLC, 2015 WL 5567355, at *2 (D.N.J.
2015). Of the 1,300-plus potential class members who received
notice, 118 current and former BAYADA employees chose to opt
into the collective action. (Docket No. 139-2 at 7.) In
consideration of Defendant’s motion to dismiss non-responsive
opt-in plaintiffs, the Court dismissed 45 of those plaintiffs.
(Docket No. 169.) Twelve of those previously non-responsive
opt-in plaintiffs expressed their desire to remain in the case
after the Court issued an order to show cause as to why they
should not be dismissed for their lack of participation, and the
Court denied Defendant’s motion to dismiss those opt-in
plaintiffs. (Id.) Based on the Court’s calculations, there are
currently 73 plaintiffs, which the Court presumes accounts for
the two originally named plaintiffs.
1

Also pending are related motions to seal filed by Plaintiffs
[140, 151], and Defendant’s motion for leave to file excess
pages [146]. The latter motion will be granted nunc pro tunc.
Plaintiffs’ motions to seal will be denied for their failure to
comply with L. Civ. R. 5.3(c), as explained in the Order
accompanying this Opinion.
2

2

The standard to be applied on final certification is
whether the proposed collective plaintiffs are “similarly
situated.”

Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536

(3d Cir. 2012).

“[P]laintiffs must demonstrate by a

preponderance of the evidence that members of a proposed
collective action are similarly situated in order to obtain
final certification and proceed with the case as a collective
action.”

Id. at 537.

This standard is different from a

determination of the merits of Plaintiffs’ claims.

See Casco v.

Ponzios RD, Inc., 2021 WL 870709, at *8 (D.N.J. 2021) (citing
Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 193 (3d Cir.
2011), rev'd on other grounds, Symczyk, 133 S. Ct. at 1526)
(explaining that if the plaintiffs succeed in carrying their
burden at the final certification stage, the case may proceed on
the merits as a collective action).
For the reasons expressed below, the Court will grant
Plaintiffs’ motion, and deny Defendant’s motion, finding as
Plaintiffs relate in their brief, “The primary difference
between the conditional certification motion and now is that now
there is just far more evidence concerning similarity of the
Opt-Ins factual and employment settings.”
26.)

(Docket No. 141-1 at

Whether Plaintiffs will prevail on the merits of their

3

claims remains to be seen, 3 but Plaintiffs have readily met their
burden of showing they are sufficiently similarly situated to
proceed as a collective action rather than 73 individual cases.
Accordingly, the Court will restate the basis for granting
conditional certification, and add supplemental evidence to
support the Court’s determination that final certification is
warranted.
BACKGROUND
Plaintiffs Sonya Ivanovs and Katie Hoffman, on behalf of
themselves and all those similarly situated, allege that
Defendant, BAYADA Home Health Care, Inc., unlawfully classifies
all of its Client Service Managers (“CSMs”) nationwide as exempt
from the minimum wage and overtime requirements of the FLSA.

Plaintiffs recently filed a motion for summary judgment [171],
which is still being briefed, regarding Defendant’s good faith
defense to the imposition of liquidated damages. See 29 U.S.C.
§ 216(b) (“Any employer who violates the provisions of section 6
or section 7 of this Act [29 U.S.C. §§ 206 or 207] shall be
liable to the employee or employees affected in the amount of
their unpaid minimum wages, or their unpaid overtime
compensation, as the case may be, and in an additional equal
amount as liquidated damages.”); Marshall v. Brunner, 668 F.2d
748, 753 (3d Cir. 1982) (“In 1947, upon the enactment of section
11 of the Portal-to-Portal Act, 29 U.S.C. § 260, Congress
provided employers with a defense to the mandatory liquidated
damage provision of section 216(b). Essentially, the defense
provides that the district court has discretion to award no
liquidated damages, or to award an amount of liquidated damages
less than the amount provided by section 216(b) of the FLSA, if,
and only if, the employer shows that he acted in good faith and
that he had reasonable grounds for believing that he was not
violating the Act.”).
3

4

According to Plaintiffs, BAYADA is a home healthcare
provider with more than 330 office locations in 21 States, and
its operations are generally divided into two primary business
lines: Home Health and Home Care.

The Home Health business line

offices provide home visit services (typically one hour or less)
by various medical professionals and paraprofessionals providing
nursing, therapeutic, and rehabilitative care primarily on a
short-term basis.

The Home Care business line offices provide

nursing and personal care to people with chronic illness,
injury, or disability, primarily on an ongoing shift (two hours
or more) basis.
Each office location typically employs one or more CSM.
Plaintiff relates that Home Health CSMs and Home Care CSMs
perform the same primary duty – filling shifts for nursing and
medical paraprofessional care in clients’ homes – but the method
by which that duty is carried out differs slightly between Home
Health CSMs and Home Care CSMs, as do their secondary duties.
Ivanovs was a Home Health CSM and Hoffman was a Home Care CSM.
Plaintiffs claim that BAYADA classifies CSMs as exempt
despite the fact that it requires CSMs to perform non-exempt
duties as their primary duties, including but not limited to:
scheduling health care professionals for patients, calling
health care professionals for assignments, performing patient
intake calls, contacting patient referrals, and verifying
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insurance coverage for patients.

Plaintiffs claim that based

upon this unlawful exempt classification, BAYADA has willfully
refused to pay the CSMs the required overtime compensation for
overtime hours worked.
Previously, this Court conditionally certified Plaintiffs’
FLSA collective action with two nationwide sub-classes:

Sub-

class 1 is BAYADA Home Health CSMs who worked for BAYADA at any
location nationwide during the three years prior to the Court’s
order allowing notice; Sub-class 2 is the BAYADA Home Care CSMs
who worked for BAYADA at any location nationwide during the
three years prior to the Court’s order allowing notice.
As Defendant argued in opposition to Plaintiffs’ motion for
conditional certification, Defendant again contests final
certification because, among other things, Defendant contends
that the duties of CSMs differ significantly across its 330
offices, and the determination of whether an employee should be
classified as exempt or non-exempt requires a very fact-specific
analysis, which is not conducive of a collective action.
DISCUSSION
A.

Jurisdiction

Plaintiffs bring this action on behalf of themselves and
others “similarly situated” to remedy alleged violations of the
Fair Labor Standards Act, 29 U.S.C. § 201, et seq., and
therefore this Court exercises subject matter jurisdiction
6

pursuant to 28 U.S.C. § 1331.
B.

Analysis

The court in Pearsall-Dineen v. Freedom Mortgage Corp., 27
F. Supp. 3d 567, 569-71 (D.N.J. 2014) (quoting 29 U.S.C. §
216(b) and following Camesi v. Univ. of Pittsburgh Med. Ctr.,
729 F.3d 239, 242–43 (3d Cir. 2013)), articulated the two-step
process by which the FLSA permits an employee who believes his
or her right to overtime compensation has been violated to
proceed in a collective action, “for and on behalf of himself or
themselves and other employees similarly situated”:
The first step analysis begins when a plaintiff moves
for conditional certification of a collective action. This
step generally “occurs early in the litigation when the
court has minimal evidence.” The conditional certification
process, despite sometimes borrowing the language of class
action certification from Federal Rule of Civil Procedure
23, is not really a certification but instead is a
“district court's exercise of [its] discretionary power ...
to facilitate the sending of notice to potential class
members.” Symczyk v. Genesis Healthcare Corp., 656 F.3d
189, 194 (3d Cir. 2011) (citation omitted), rev'd on other
grounds sub nom. Genesis Healthcare Corp. v. Symczyk, 133
S. Ct. 1523 (2013).
When considering the first step of conditional
certification, courts apply a “fairly lenient standard” to
determine whether the plaintiff has met the “modest factual
showing” necessary for certification. Zavala, 691 F.3d at
536 n.4. Under this standard, a plaintiff “must produce
some evidence beyond pure speculation of a factual nexus
between the manner in which the employer's alleged policy
affected her and the manner in which it affected other
employees.” Id. (internal quotation marks omitted)
(quoting Symczyk, 656 F.3d at 193). This generally
requires review of both the pleadings and affidavits in
support of or in opposition to the proposed collective
action. A showing that opt-in plaintiffs bring the same
7

claims and seek the same form of relief has been considered
sufficient for conditional certification.
Following conditional certification, a FLSA collective
action proceeds to discovery. At or near the conclusion of
discovery, a court (upon motion by either the plaintiff for
final certification or by the defendant for
decertification) proceeds to the final step for
certification. Symczyk, 656 F.3d at 193. “It is possible
for a class to be certified at stage one but fail
certification at stage two.” The final certification step
requires a plaintiff to establish, by a preponderance of
the evidence, that the plaintiff and opt-in plaintiffs are
“similarly situated.” Zavala, 691 F.3d at 536. Courts
make this evaluation on a case-by-case basis . . . .
Pearsall-Dineen, 27 F. Supp. 3d at 569-71 (some citations and
quotations omitted).
To support the factual nexus between the manner in which
Defendant’s alleged policy affected Plaintiffs and the manner in
which it affected other employees, Plaintiffs presented the
following evidence in support of their motion for conditional
certification:
1. BAYADA uses a single, uniform job description for all Home
Health CSMs across the country, and another single, uniform
job description for all Home Care CSMs across the country.
Their job duties included:
• Coordinating visits from caregivers;
• Answering client questions;
• Engaging in customer service;
• Relaying messages from clients to caregivers and
among caregivers;
• Speaking with referral sources to obtain
client information;
8

• Verifying insurance coverage; and
• Submitting routine paperwork.
Plaintiffs state that they performed these non-managerial
tasks while working in excess of forty hours per week, and
that between 70% and 95% of their time was dedicated to
non-exempt duties.
2. BAYADA standardizes its practices and processes at all
offices. It does this through hundreds of policies
promulgated by the corporate office, and through its New
Jersey headquarters and Central Support Services offices.
BAYADA has established Home Health and Home Care
“Playbooks” that cover every aspect of the company’s office
operations. Particularly with CSMs, BAYADA trains CSMs
through uniform training materials generally applicable to
Home Health and Home Care CSMs across the company,
including the fact that when a CSM transfers from one
office to another, the CSM does not require any additional
training to perform his or her duties.
3. The compensation method is the same for CSMs, and all CSMs
nationwide are paid on a salaried basis and are not paid
overtime.
Discovery conducted after the conditional certification
supports these similarities, and adds many more:
4. BAYADA’s corporate headquarters directs the operations of
the company from top down. There are five levels of
decision-making and management of all of BAYADA’s office
locations between CSMs and the CEO.
5. BAYADA’s corporate headquarters decides whether to pay
overtime to its employees, and BAYADA has a common
corporate policy not to pay overtime to CSMs, regardless of
business line, due to its uniform exempt classification of
CSMs.
6. BAYADA has established a culture known as “The BAYADA Way”
that permeates all aspects of the company’s operations.
7. BAYADA trains CSMs using standard nationwide training
materials and online courses through its “BAYADA
University” program.
9

8. BAYADA’s corporate headquarters disseminates all work rules
and procedures that apply to all CSMs throughout the entire
organization regardless of the size, location, or region in
which they work.
9. BAYADA creates one employee handbook, “Boarding the BAYADA
Bus” for CSMs nationwide. This office guide details
BAYADA’s rules, training programs, office hours, dress
code, policies, benefits, and other information applicable
to all CSMs across the company.
10. BAYADA publishes hundreds of other stand-alone policies
applicable to CSMs, many of which are referenced in
Boarding the BAYADA Bus and in the Playbook, including the
Time Keeping and Reporting for Office Employees policy.
11. BAYADA mandates uniformity in operations to the smallest
level of detail and issues manuals with operating and
training policies that apply unvaryingly at all locations
nationwide ranging from how to answer the phone, to how to
fill a shift, to the color of the walls.
12. BAYADA identically classifies the CSMs in terms of minimum
qualifications, training and certifications, primary
responsibilities, other responsibilities, and FLSA
exemption status across the United States. All CSMs
undergo the same corporately derived annual performance
review process.
13. BAYADA trains CSMs using standard nationwide training
materials and online courses through its “BAYADA
University” program.
14. BAYADA CSMs have the same employee compensation and
benefits and are uniformly not paid overtime.
15. BAYADA, without exception, classifies all CSMs as exempt
with no regard to the size, sales volume, geographic
location or hours of operation of the office where the CSM
works; the CSM’s tenure; or the supervisor or manager to
whom the CSM reports.
16. BAYADA
account
volume,
BAYADA,

classifies all CSMs as exempt without taking into
(1) office size, (2) office patient or sales
(3) office location, (4) the CSMs’ tenure with
(5) the CSMs’ experience, (6) the business line
10

(home care or home health, (7) the office’s specialty, or
(7) the Director that supervises the CSM.
To assess whether this evidence presents a preponderance of
the evidence to show that Plaintiffs are “similarly situated,”
courts in the Third Circuit consider several factors: (1)
whether the plaintiffs are employed in the same corporate
department, division, and location; (2) whether they advance
similar claims; (3) whether they seek substantially the same
form of relief; (4) whether they have similar salaries and
circumstances of employment; and (5) whether they have similar
or individualized defenses.

Casco v. Ponzios RD, Inc., 2021 WL

870709, at *8 (D.N.J. 2021) (citing Zavala v. Wal Mart Stores
Inc., 691 F.3d 527, 537 (3d Cir. 2012); Halle v. W. Penn
Allegheny Health Sys. Inc., 842 F.3d 215, 226 (3d Cir. 2016)).
The degree of fairness and procedural impact of certifying the
action as a collective action are also relevant to this
analysis.

Id.

In opposition to final certification and in support of its
request to decertify the collection action, Defendant argues:
each individual plaintiff worked at a different location across
13 different states, each with a different supervisor providing
different guidance as to work, management and timekeeping, and
different staffing levels; the opt-ins worked in seven different
home health practice areas, roughly divided between Home Health
11

and Home Care, ranging from pediatric services to hospice care,
each with its own different demands as to expertise, caseload
management and scheduling; by their own admission, the class
members exercised widely varying managerial duties,
administrative duties, discretion and judgment, including
dissimilar facts as to supervising employees, setting their pay
rates, scheduling their work, evaluating employees, disciplining
employees, recruiting and hiring employees, and managing
profitability and gross margins of their CSM caseloads; the optins worked varied time frames, some in 2014 only, others
starting in early 2018, and every period in between – and for
periods that vary from three months to more than five years; the
CSMs worked different “on-call manager” duties, with some doing
none, others performing it a few times a year, and still others
claiming on-call management duties every week; and each opt-in
claims to have worked different hours and each recorded his or
her time in different ways, with some admitting their certified
time entered into BAYADA’s system was accurate, while others
contend they made false certifications of their time each
week, and still others claim they accurately certified their
time in some weeks, but reported false entries in others.
Defendant further argues that individualized defenses as to
each opt-in, further complicates the presentation at trial and
makes a collective action trial inefficient.
12

Defendant also

argues that a collective action of 70-plus CSMs, all with
different supervisors, varied duties and decision-making, and
other challenges will make the case unmanageable and unfair to
BAYADA.
The Court is not persuaded by Defendant’s arguments.

Of

primary consideration is that Defendant’s uniform policies for
every CSM regardless of location, as implemented through the
BAYADA University, BAYADA Playbook, and BAYADA Bus, undermine
Defendant’s argument regarding inefficiency, unfairness, and
individualized defenses.

To the contrary, it appears to the

Court that collective treatment of the 73 Plaintiffs would
promote efficiency, fairness, and limit individualized defenses,
to Defendant’s benefit as well as Plaintiffs’. 4

While the

existence of uniform policies is not dispositive, it is strong
evidence to support Plaintiffs’ burden of showing how they are
similarly situated.

See

Rivet v. Office Depot, Inc., 207 F.

Supp. 3d 417, 424 (D.N.J. 2016) (citations omitted) (explaining
that “the existence of uniform policies and procedures is not
dispositive,” and “the imposition of uniform policies does not
guarantee that all ASMs will be identical,” but “it does suggest
See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170
(1989) (explaining that a collective action allows plaintiffs
the advantage of lower individual costs to vindicate rights by
the pooling of resources, and “the judicial system benefits by
efficient resolution in one proceeding of common issues of law
and fact arising from the same alleged activity”).
4

13

that their roles will be substantially similar”).
As for the individual differences between Plaintiffs,
Defendant relies upon the minutia of each Plaintiff’s work day
and the job duties listed on some Plaintiffs’ resumes and
LinkedIn profiles to argue against this case proceeding as a
collective action.

Courts, however, “have routinely held [that]

[p]laintiffs do not need to be identical to be similarly
situated for purposes of an FLSA collective action.”

Ruffin v.

Avis Budget Car Rental, LLC, 2014 WL 294675, at *3 (D.N.J. 2014)
(citing Stillman v. Staples, Inc., No. 07–849, 2009 WL 1437817,
at *18 (D.N.J. May 15, 2009) (other citations omitted).

“Minor

factual deviations do not defeat collective treatment.”

Id.

(citation omitted).
Defendant also argues that this individualized evidence and
inconsistencies in testimony cannot support collective treatment
of this case.

It will be necessary for the factfinder to assess

the credibility of the representative Plaintiffs’ testimony
regarding whether their job is more administrative, and
therefore non-exempt, rather than managerial and exempt.

On the

current record, however, Plaintiffs have demonstrated that
despite some minor differences between how each Plaintiff
performs his or her job, the preponderance of the evidence shows
that overall Defendant treats its CSMs in a uniform way, and
CSMs accordingly perform their jobs in a uniform way.
14

See

Rivet, 207 F. Supp. 3d at 427–28 (“Office Depot largely argues
that representative testimony is problematic because many of the
testifying ASMs are not credible.

However, if that were enough

to defeat final certification, FLSA actions could never proceed
on a collective basis whenever witness credibility was at issue.
Such an extreme view contravenes the well-settled principle that
the FLSA should be liberally construed to achieve its purpose.
The Court is confident that Office Depot can make its
credibility arguments on a collective basis.”) (citing Mitchell
v. Lublin, McGaughy & Assocs., 358 U.S. 207, 211 (1959); Reich
v. Gateway Press, Inc., 13 F.3d 685, 701 (3d Cir. 1994)) (other
citations omitted).
The Third Circuit has noted that “the task on final
certification is determining whether the plaintiffs who have
opted in are in fact ‘similarly situated’ to the named
plaintiffs,” which is “impossible unless Plaintiffs can at least
get over the line of ‘more likely than not,’” but “[a]t the same
time, a stricter standard would be inconsistent with Congress’
intent that the FLSA should be liberally construed.”
691 F.3d at 537 (citation omitted).

Zavala,

Here, Plaintiffs have

readily “gotten over the line” and shown by a preponderance of
the evidence that it is “more likely than not” they are
similarly situated so that they may obtain final certification

15

and proceed with the case as a collective action. 5
CONCLUSION
For the reasons expressed above, Plaintiffs have met the
standard for final certification of their two proposed subclasses on their claims that Defendant violated the FLSA by
classifying Home Health CSMs and Home Care CSMs as exempt
instead of non-exempt.

Plaintiffs’ motion for final

certification will be granted, and Defendant’s motion to
decertify the collection action will be denied.
An accompanying Order will be entered.

Date: August 6, 2021
At Camden, New Jersey

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

Defendant states that the “precedents” cited in their motion
for decertification “point the way” to the conclusion that “the
variety of defenses and credibility challenges as to
each CSM will not lend themselves to collective treatment.”
(Docket No. 139-2 at 39.) The Court disagrees not only in
substance, but also because the majority of cases cited by
Defendant to support its position are from outside this District
and the Third Circuit.
5

16