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

Filing 339

OPINION. Signed by Judge Noel L. Hillman on 5/25/2023. (alb, )

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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.
800 3RD AVE.
SUITE 2800
New York, N.Y. 10022
On behalf of Plaintiffs
MICHAEL D. HOMANS
HOMANS PECK, LLC
1500 JOHN F. KENNEDY BLVD.
STE. 520
PHILADELPHIA, PA. 19102
On behalf of Defendant
HILLMAN, District Judge
Pending before the Court are Defendant BAYADA Home Health
Care, Inc.’s renewed motions for judgment as a matter of law.
(ECF 328; ECF 329).

For the reasons expressed below, BAYADA’s

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motions will be denied.
I. Background
BAYADA is a healthcare company incorporated in Pennsylvania
and principally based in Moorestown, New Jersey.
18-19).

(ECF 1 at ¶¶

Named Plaintiffs Sonya Ivanovs and Katie Hoffman

(collectively “Plaintiffs”) are citizens of New Jersey and
Minnesota, respectively, who both worked as client services
managers (“CSMs”) for BAYADA.

(Id. at ¶¶ 12, 15).

Named

Plaintiffs allege – on behalf of themselves and a collective of
former BAYADA CSMs and those who have held comparable positions
– that BAYADA unlawfully classifies such positions as exempt
from overtime requirements in violation of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., while
employees perform primarily non-exempt duties in practice.

(Id.

at ¶¶ 2-4, 11).
A jury trial was held from January 19, 2023 to February 6,
2023 with seven Testifying Plaintiffs representing the
collective of sixty-two total Plaintiffs. 1

Undisclosed to the

jury, the Court bifurcated the trial, with Phase 1 limited to
liability and then, depending on the jury’s response to
liability-specific interrogatories, Phase 2 was to determine
damages as necessary.

Additionally, depending on the jury’s

Separately, BAYADA called Opt-In Plaintiffs Anika Downer and
Deidre Taylor as witnesses as part of its case.
1

2

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responses to the liability-specific interrogatories in Phase 1,
an additional instruction and two more interrogatories may have
followed relating to whether Testifying Plaintiffs for whom
liability was found were representative of two sets of nontestifying CSMs.
On February 1, 2023, prior to the case being submitted to
the jury for deliberation as to liability, Plaintiffs filed a
motion for judgment as a matter of law pursuant to Federal Rule
of Civil Procedure 50(a) with respect to BAYADA’s executiveexemption defense, (ECF 292), and BAYADA moved for judgment as a
matter of law relating to the applicability of the fluctuating
workweek (“FWW”) method of calculating damages and the alleged
failure of Testifying Plaintiffs to demonstrate that they
represented sufficiently the opt-ins who had not testified.
(ECF 295; ECF 296).

The Court did not rule on the motions and

the case was submitted to the jury as to liability.
The jury concluded that named Plaintiff Ivanovs failed to
meet her threshold burden of demonstrating that she worked more
than forty hours in any given week during the identified period,
(ECF 311), and judgment was entered in favor of BAYADA and
against Ivanovs, (ECF 327). 2
Ivanovs filed a notice
The appeal was dismissed
Procedure 42(b) on April
analysis in this opinion
2

However, the jury was unable to

of appeal on March 28, 2023. (ECF 335).
pursuant to Federal Rule of Appellate
18, 2023. (ECF 338). The Court’s
does not rely on testimony or other
3

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reach a verdict as to the other three liability interrogatories
submitted to it – the applicability of the executive,
administrative, and combination exemptions as to the other
Testifying Plaintiffs and the Court declared a mistrial.
302; ECF 311; Trial Tr. 1890:3-6).

(ECF

Therefore, the

representative interrogatories were not presented to the jury
and Phase 2 of the trial did not take place.

The Court provided

the parties twenty-eight days to renew their motions for
judgment as a matter of law consistent with Federal Rule of
Civil Procedure 50(b).

(ECF 302).

BAYADA timely renewed its motions.

(ECF 328; ECF 329).

Plaintiffs filed oppositions, (ECF 330; ECF 331), to which
BAYADA replied, (ECF 333; ECF 334).
II. Discussion
A. Jurisdiction
The Court possesses original jurisdiction over this action
as Plaintiffs’ claims are based on alleged violations of the
FLSA.

See 28 U.S.C. § 1331.

B. Rule 50
A motion for judgment as a matter of law may be made after
a party has been fully heard on an issue during a jury trial and
prior to the case being submitted to the jury.

evidence specific to her.
4

Fed. R. Civ. P.

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50(a).

A motion for judgment as a matter of law pursuant to

Rule 50(a) “should be granted only if, viewing the evidence in
the light most favorable to the nonmovant and giving it the
advantage of every fair and reasonable inference, there is
insufficient evidence from which a jury reasonably could find
liability.”

Avaya Inc., RP v. Telecom Labs, Inc., 838 F.3d 354,

373 (3d Cir. 2016) (quoting Lightning Lube, Inc. v. Witco Corp.,
4 F.3d 1153, 1166 (3d Cir. 1993)).

Though Rule 50(a) provides

courts with the power to enter judgment as a matter of law,
submission of a case to a jury is generally preferred to
granting such motions.

See Baran v. ASRC Fed., Mission Sols.,

401 F. Supp. 3d 471, 479 (D.N.J. July 9, 2019) (citing Unitherm
Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 405
(2006)).
If a court does not grant a motion for judgment as a matter
of law pursuant to Rule 50(a), the movant may renew their motion
within twenty-eight days of entry of judgment or, if related to
a jury issue not decided by a verdict, within twenty-eight days
of the jury’s discharge.

Fed. R. Civ. P. 50(b).

The standard

for considering a renewed motion per Rule 50(b) is the same as
that for a Rule 50(a) motion and, without weighing evidence or
witness credibility, a court should grant a renewed motion only
“if ‘the record is critically deficient of that minimum quantity
of evidence from which a jury might reasonably afford relief.’”
5

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Baran, 401 F. Supp. 3d at 479-80 (quoting Raiczyk v. Ocean Cnty.
Veterinary Hosp., 377 F.3d 266, 269 (3d Cir. 2004)); see also
Kars 4 Kids Inc. v. America Can!, 8 F.4th 209, 218 n.8 (3d Cir.
2021) (“When evaluating ‘whether the evidence is sufficient to
sustain liability, the court may not weigh the evidence,
determine the credibility of witnesses, or substitute its
version of the facts for the jury's version.’

‘The question is

not whether there is literally no evidence supporting the party
against whom the motion is directed but whether there is
evidence upon which the jury could properly find a verdict for
that party.’” (quoting Lightning Lube, Inc., 4 F.3d at 1166 and
then Jaasma v. Shell Oil Co., 412 F.3d 501, 503 (3d Cir.
2005))).
III. Analysis
A. BAYADA’s Motion as to Representativeness (ECF 328)
BAYADA first seeks judgment as a matter of law with respect
to the sufficiency with which the seven Testifying Plaintiffs
represented the other fifty-five members of the collective at
trial.

Trial evidence varied among Testifying Plaintiffs in

terms of their ability to evaluate and adjust pay for staff,
recruit and interview, run meetings, and perform similar tasks,
according to BAYADA.

(ECF 328-1 at 6-17, 24-25).

It argues

that Plaintiffs failed to explain how the seven Testifying
Plaintiffs were selected, (id. at 20-21), establish how the
6

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Testifying Plaintiffs were aware of the circumstances of other
opt-ins, (id. at 19-20), or present a corporate policy or
decision preventing CSMs from performing managerial duties –
instead opting for individualized evidence.

(Id. at 21-24).

The fact-intensive nature of misclassification cases render them
inappropriate for collective treatment and courts may find a
lack of representativeness among plaintiffs even after final
certification of the collective and trial, (id. at 26-28 (citing
Johnson v. Big Lots, 561 F. Supp. 2d 567 (E.D. La. 2008))), and
BAYADA contends that its due-process rights would be violated by
Non-Testifying Plaintiffs prevailing without it being able to
assert individualized defenses and relieving Non-Testifying
Plaintiffs of their burden of proving their claims would also
violate the Rules Enabling Act, (id. at 28-30).

It therefore

asks the Court to either dismiss the claims of Non-Testifying
Plaintiffs or, alternatively, decertify the collective action.
(Id. at 1).
The FLSA generally requires employees who work more than
forty hours per week to be compensated for hours worked in
excess of forty at a rate of at least one-and-a-half times their
regular rate of pay.

See 29 U.S.C. § 207(a)(1).

Employers may

be held liable for unpaid overtime and recovery actions may be
brought “by any one or more employees for and [on] behalf of
himself or themselves and other employees similarly situated.”
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§ 216(b).

“Similarly situated” is not defined in the FLSA.

See

Arriaga v. Anthony Logistics of Hudson Cnty. LLC, No: 22-495,
2023 WL 2706822, at *2 (D.N.J. Mar. 30, 2023).

However,

“similarly situated” may be demonstrated by showing that the
employees “suffer[ed] from a single, FLSA-violating policy, and
when proof of that policy or of conduct in conformity with that
policy proves a violation as to all the plaintiffs” and such a
demonstration may be made even if the employer maintains
policies consistent with the FLSA.

Reinig v. RBS Citizens,

N.A., No. 2:15-CV-01042, 2017 WL 8941219, at *13 (W.D. Pa. Aug.
2, 2017) (report of special master) (quoting Harris v. Chipotle
Mexican Grill, Inc., No. 13-cv-1719, 2017 WL 2537228 at *6 (D.
Minn. June 12, 2017)); see also Zavala v. Wal Mart Stores Inc.,
691 F.3d 527, 538 (3d Cir. 2012) (“Being similarly situated . .
. . means that one is subjected to some common employer practice
that, if proved, would help demonstrate a violation of the
FLSA.”); see also cf. Johnson, 561 F. Supp. 2d at 580, 583
(noting that questionnaire responses of opt-ins varied in
numerous ways, including half of respondents regularly hiring
associates, more than a quarter regularly terminating employees,
and nearly two-thirds regularly setting the work schedules of
others and disciplining employees and that “[t]he plaintiffs’
testimony on whether their primary or most important duties
entail[ed] management activities [wa]s a mixed bag”).
8

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Pre-trial, the Court was persuaded by a discussion in the
Third Circuit’s Fischer v. Federal Express Corp. differentiating
FLSA collective actions brought pursuant to Section 216(b) from
Rule 23 class actions, noting that Section 216(b) only requires
that opt-in plaintiffs be “similarly situated” to the employees
bringing forth the action and that “many of the rules specific
to class actions have evolved to protect the due process rights
of absent class members, a consideration not pertinent under the
post-1947 FLSA.”

42 F.4th 366, 376 (3d Cir. 2022) (quoting

Campbell v. City of L.A., 903 F.3d 1090, 1105 (9th Cir. 2018)).
Indeed, the Court’s decisions on trial procedure, including the
drafting of interrogatories and bifurcation, were influenced by
Fischer’s recognition of “[t]he essentially individual character
of an FLSA collective action litigation.”

Id. at 377.

Nonetheless, “[c]ourts commonly allow representative
employees to prove violations with respect to all employees.
Thus, not all employees need to testify in order to prove the
violations or to recoup back wages.”

Reich v. Gateway Press,

Inc., 13 F.3d 685, 701-02 (3d Cir. 1994) (citations omitted);
see also Stillman v. Staples, Inc., No. 07–849, 2009 WL 1437817,
at *17-18 (D.N.J. May 15, 2009) (noting that plaintiffs can rely
on representative testimony at trial and that such testimony has
been accepted when there is substantial other evidence
supporting inferences drawn from the testimony, the employer
9

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systematically caused records to be falsified, or when the
plaintiff “establishes a uniform pattern or practice of wage
methods, conditions, and hours encompassing a class of
employees” (quoting Reich v. Chez Robert, Inc., 821 F. Supp.
967, 984 (D.N.J. Apr. 8, 1993))).

Plaintiffs bear the burden of

demonstrating that they are similarly situated to other members
of the collective, the defendant had a pattern and practice
regarding compensation, and that that pattern and practice
violated the FLSA, but “the burden is not an onerous one” and
“is met with respect to a particular employee ‘if it is proved
that the employee has in fact performed work for which he is
improperly compensated and if the employee produces sufficient
evidence to show the amount and extent of that work as a matter
of just and reasonable inference.’”

Stillman, 2009 WL 1437817,

at *18 (quoting Pegasus Consulting Grp. v. Admin. Rev. Bd. for
the Dep’t of Lab., Wage and Hour Div., Emp. Standards Admin.,
No. 05–5161, 2008 WL 920072, at *18 (D.N.J. Mar. 31, 2008)).
The court in Stillman was presented with a similar
procedural posture and facts as the case at bar.

Stillman

involved a collective of 342 opt-ins that alleged that they were
hired as sales managers, but their primary duties were nonmanagerial.

Id. at *1.

At trial, thirteen sales managers

testified that the plaintiffs worked more than forty hours per
week without overtime; most of their time was spent performing
10

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tasks such as cashiering, cleaning, and unloading trucks; and
they did not possess final authority over personnel decisions –
positions bolstered by corporate and non-party witnesses – and
the jury found in favor of the plaintiffs.

Id. at *2, 15-16.

The defendant moved for judgment as a matter of law or, in the
alternative, a new trial, arguing that the plaintiffs failed to
demonstrate representativeness because – among other reasons –
plaintiffs only testified as to their individual work rather
than the duties of the non-testifying plaintiffs, no evidence
was presented as to the selection of the thirteen testifying
plaintiffs or that they were similar to the non-testifying
plaintiffs, no evidence was presented indicating that the
testifying plaintiffs observed the non-testifying plaintiffs,
and more than anecdotal evidence was required to establish
company-wide patterns with respect to job duties and exempt
statuses.

Id. at *2, 16.

The court denied the Rule 50 motion on the issue of
representativeness, concluding that the testimony showed that
the plaintiffs were all sales managers who worked more than
forty hours per week without overtime, the testifying plaintiffs
stated that they spent the majority of their time performing
non-exempt work and could not make human-resources decisions,
the testimony of a non-party and corporate officers supported
the plaintiffs’ testimony, and the same defense was common to
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all claims – that the plaintiffs were exempt managers with
primarily managerial duties and that, if they performed mostly
hourly tasks, they were not performing their jobs properly.
at *19-20.

Id.

The court thus held that the “plaintiffs properly

offered their own accounts of their work at Staples and the jury
credited it and apparently found that performance problems some
of these plaintiffs had were insufficient to render such
employees dissimilar from others who held the same management
position” and there was sufficient evidence that the plaintiffs
were similarly situated and that the testifying plaintiffs were
representative.

Id. at *20.

Cases in nearby districts have also found evidence similar
to that which was presented here sufficient for
representativeness and rejected arguments similar to BAYADA’s.
For instance, in Perry v. City of New York, 2,519 emergency
medical technicians and paramedics succeeded in a FLSA action
alleging that they were not compensated for pre- and post-shift
work and the defendants renewed their motion for judgment as a
matter of law and sought a new trial.
(S.D.N.Y. Aug. 5, 2021).

552 F. Supp. 3d 433, 438

On the issue of whether the plaintiffs

were similarly situated, the court noted that the plaintiffs’
burden “[wa]s considerably less stringent than the requirement
of Fed. R. Civ. P. 23(b)(3) that common questions ‘predominate’”
and that “the plaintiffs must merely ‘share a similar issue of
12

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law or fact material to the disposition of their FLSA claims,’
and ‘dissimilarities in other respects should not defeat
collective treatment.’”

Id. at 442-43 (quoting Alonso v. Uncle

Jack's Steakhouse, Inc., No. 08 Civ. 7813, 2011 WL 4389636, at
*3 (S.D.N.Y. Sept. 21, 2011) and then Scott v. Chipotle Mexican
Grill, Inc., 954 F.3d 502, 516 (2d Cir. 2020)).

The Perry court

found no reason to go back on its earlier grant of a motion
finding that the plaintiffs were similarly situated when the
jury identified a common policy of the defendants of suffering
or permitting pre- and post-shift work without pay and “courts
routinely find that plaintiffs are similarly situated despite
individualized issues such as those raised by the City here.”
Id. at 443 (quoting Adams v. City of N.Y., No. 1:16-cv-03445,
2019 WL 5722054, at *7 (S.D.N.Y. Aug. 29, 2019)).
Similarly, in Strauch v. Computer Sciences Corp., the
defendant was found liable for misclassifying system
administrators under the FLSA and state laws.

No. 3:14-CV-956,

2018 WL 4539660, at *1-2 (D. Conn. Sept. 21, 2018).

In the

context of its motion to decertify the FLSA collective and state
classes, the defendant alleged that the plaintiffs “cherrypick[ed]” those who testified and that the “highly varied and
statistically defective representative testimony to impose
liability” would deny it due process.

Id. at *14.

The court

rejected this argument, finding that – to the extent that the
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testifying plaintiffs were not representative – the defendant
had the opportunity to rebut that evidence with its own
presentation of testimony.

Id.

In its reply, BAYADA contends that Stillman is non-binding
and factually distinguishes it from the case at bar.
at 6-9).

(ECF 334

Key differences, according to BAYADA, include

Plaintiffs’ ability to make some human-resources decisions, the
non-party corroborative testimony in Stillman not present in the
instant matter, and – most importantly – a common defense in
Stillman that is inapplicable here as BAYADA has made specific
challenges such as Ivanovs not working more than forty hours in
a week; evidence that Testifying Plaintiffs Katie Hoffman and
Josie Gupton evaluated, counseled, managed, disciplined, or
supervised field employees; and Testifying Plaintiff Tiffany
Potteiger stopped fully engaging in her position after a few
months.

(Id. at 7-8).

Plaintiffs further have made it

impossible for a jury to determine whether Plaintiffs shared
similar work habits and duties or were impacted by a common
policy or practice due to their failure to present such
evidence, according to BAYADA.

(Id. at 8-9).

Reviewing the record, the Court agrees that the testimony
at trial diverged in, among other ways, CSMs’ ability to
evaluate and supervise (see, e.g., Trial Tr. at 145:12-16
(Testifying Plaintiff Adriana Vargas-Smith supervised the
14

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nursing team in non-clinal respects); id. at 238:3-7 (Testifying
Plaintiff Blaire Yarbrough would sometimes observe field staff,
but not evaluate them); id. at 343:25 to 344:3 (Testifying
Plaintiff Christina Hess did not supervise the care and
assistance provided to clients); id. at 503:14-19, 515:6-16
(Hoffman sometimes performed performance evaluations, corrective
actions, and payroll); id. at 1067:15 to 1068:15 (Division
Director Lisa Stanley testified that interviewing and
performance evaluations were secondary duties for CSMs); id. at
1216:16-25 (Director Erica Kjenstad testified that Hoffman had
human-resources responsibilities including evaluations,
coaching, and counseling); id. at 1360:22 to 1361:10 (Regional
Director of Operations for the Southeast Richard Hopson
testified that Gupton supervised field staff); id. at 1409:19 to
1410:5 (Downer conducted performance evaluations); id. at
1555:7-10 (Chief Operating Officer of the Skilled Nursing Unit
Cristen Toscano testified that CSMs conducted annual performance
evaluations for field staff)), develop staff (see, e.g., id. at
145:17 to 146:4 (Vargas-Smith did not counsel or develop staff,
but sat in on such sessions); id. at 457:22 to 458:1 (Hoffman
did not provide feedback or direction to nurses in the field);
id. at 667:17 to 668:5 (Gupton conducted quarterly reviews;
assigned and monitored professional development training; and
provided feedback including counseling, pay-rate changes, and
15

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recognition); id. at 1297:12-19 (Division Director Matt Delle
Cave testified that CSMs, including Vargas-Smith, counsel and
develop nurses)), recruit (see, e.g., id. at 260:9-17 (Yarbrough
posted recruitment ads and reviewed resumes); id. at 392:25 to
393:17 (Hess participated in the recruitment of field staff,
which took up about five percent of her working time); id. at
891:25 to 892:7 (Potteiger did not recruit); id. at 1387:8-18
(Downer was “not very involved in recruitment”); id. at 1443:22
to 144:15 (Area Director Timothy Peterkin testified that Taylor
assisted with recruitment and related events)), participate in
or lead office meetings (see, e.g., id. at 98:16 to 99:6
(Vargas-Smith sometimes contributed to – but never hosted or led
– a meeting); id. at 228:1-12 (Yarbrough testified that office
stand-up meetings were led by the director); id. at 513:10-16
(Hoffman led stand-up meetings on several occasions); id. at
605:20 to 606:6 (Gupton participated in stand-ups, though they
were not led by a specific person); id. at 993:5-9 (in
Divisional Client Service Manager Sharon Mrozinski’s experience,
CSMs led stand-up meetings); id. at 1061:18-20 (CSMs led standup meetings in Stanley’s experience)), and give out bonuses
(see, e.g., id. at 89:13-25 (Vargas-Smith could offer bonuses in
amounts subject to the director’s approval); id. at 310:20 to
311:3 (Yarbrough could offer bonuses with director approval);
id. at 495:19 to 496:8 (Hoffman did not have a standing bonus
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amount she could give out, but her recommendations were often
approved); id. at 1061:21 to 1062:1 (CSMs could offer bonuses
without director approval, according to Stanley); id. at 1363:22
to 1364:5 (Hopson testified that CSMs had discretion to give out
bonuses)).
At the same time, the record also shows relative
consistency in CSMs’ responsibilities in marketing and finance
(see, e.g., id. 118:19 to 120:14 (Vargas-Smith did not
participate in marketing, conduct financial audits, develop the
budget, or negotiate or enter into contracts); id. at 240:16-22,
244:21 to 245:14 (Yarbrough did not have a role in the office
budget, financial audits, or contracting); id. at 350:21 to
351:23 (Hess did not have budget input, enter into contracts,
collect funds, or market); id. at 458:2-23 (Hoffman did not have
input in budgeting, contract negotiations, collections, or
marketing); id. at 620:21 to 623:2 (Gupton did not have a role
in budgeting, contracts, collection, auditing, or taxes and had
a limited role in marketing); id. at 1273:5-7 (former Division
Director Cathy Jane Sorenson testified that CSMs did not have a
direct role in budgeting); id. at 1411:3-17 (Downer did not
develop the budget, contract, collect money, or conduct audits))
and authority to hire or fire staff, (see e.g., id. at 101:4-10
(Vargas-Smith did not have the authority to hire or fire and did
not participate in such decisions); id. at 345:16 to 346:9,
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411:18-22 (Hess would go over orientations with new hires, but
did not have the authority to hire and did not sit in on
interviews); id. at 436:19 to 438:8 (Hoffman did not have the
discretion to hire or fire, but made firing recommendations and
sometimes asked standard interview questions and took notes);
id. at 607:16 to 608:20, 665:14 to 666:24 (Gupton could not hire
or fire, did not make recommendations for terminations, but did
participate in interviews and gave opinions); id. at 896:12 to
897:9 (Potteiger could not hire or fire and was not involved in
either process); id. at 978:16 to 979:1 (Mrozinski testified
that directors possessed final authority to hire); id. at
1248:19 to 1250:10, 1273:8-24 (Sorenson testified that Opt-In
Plaintiff Jenna McWilliam was “the first one to identify that
there was an issue” with an employee and her opinions were given
weight and, while CSMs had authority to fire, that did not occur
in her experience); id. at 1406:19 to 1407:23 (Downer would
sometimes attend, but not participate in, interviews, could not
hire or fire, and did not make related recommendations); id. at
1500:4-13 (Taylor did not have the authority to hire or fire or
make recommendations as to terminations)).

Important to their

claims, Plaintiffs also consistently testified that they were
not compensated for hours worked over forty.

(See id. at 127:5-

10 (Vargas-Smith); id. at 252:19 to 253:2 (Yarbrough); id. at
353:19-21 (Hess); id. at 462:4-6 (Hoffman); id. at 633:17 to
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634:2 (Gupton was paid set sums for on-call work, but not
overtime); id. at 909:1-3 (Potteiger); id. at 1416:17-19
(Downer)).
The Court concludes that BAYADA’s challenges are similar to
those raised and ultimately rejected in Stillman.

See 2009 WL

1437817, at *16 (summarizing the defendant’s arguments as
including the plaintiffs’ failure to provide testimony as to the
non-testifying plaintiffs’ primary duties, evidence that the
experiences of the testifying plaintiffs were similar to the
non-testifying opt-ins, or a showing that the testifying
plaintiffs worked with or observed the non-testifying
plaintiffs).

The Court is reminded that representative

testimony is appropriate when plaintiffs “establish[] a uniform
pattern or practice of wage methods, conditions, and hours
encompassing a class of employees,” see id. at *18 (quoting
Reich, 821 F. Supp. at 984), and that a collective’s burden of
establishing that they are similarly situated, a defendant
engaged in a pattern and practice regarding compensation, and
that the pattern and practice violated the FLSA is “not an
onerous one” and may be satisfied by showing that employees
performed work for which they were improperly compensated and
“the amount and extent of that work as a matter of just and
reasonable inference,” id. (quoting Pegasus Consulting Grp.,
2008 WL 920072, at *18); see also Ruffin v. Avis Budget Car
19

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Rental, LLC, No. 11–1069, 2014 WL 294675, at *3 (D.N.J. Jan. 27,
2014) (determining, in denying a motion to decertify, that the
plaintiffs primarily performed the same duties, mostly held the
same job title and description, and were subject to the same
policies – including not receiving overtime; disparities in
testimony were not material and were outweighed by similarities;
and the managerial tasks performed were limited).

“[T]he

collective-action framework presumes that similarly situated
employees are representative of each other and have the ability
to proceed to trial collectively.”

Monroe v. FTS USA, LLC, 860

F.3d 389, 409 (6th Cir. 2017), cert. denied, 138 S. Ct. 980
(2018) (rejecting the defendants’ representative argument and
the dissent’s contention that because the time-shaving policy
was applied differently among individual plaintiffs,
representativeness was not satisfied).
It is not the Court’s role at this juncture to declare a
victor or even commentate on the comparative quality of the
evidence presented at trial.

Rather, the question before the

Court is whether “the record is critically deficient of that
minimum quantity of evidence from which a jury might reasonably
afford relief.”

See Baran, 401 F. Supp. 3d at 479 (quoting

Raiczyk, 377 F.3d at 269).

The Court cannot so find here.

The

Court holds that it was possible from the evidence presented at
trial for a jury to conclude based on the common facts presented
20

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– and in weighing the relative importance and credibility of
evidence that was dissimilar or in dispute – that Testifying
Plaintiffs other than Ivanovs were subject to a pattern and
practice in which they were not compensated for hours worked per
week over forty, that pattern and practice violated the FLSA,
and that their testimony and evidence was adequately
representative of the collective.

See cf. Johnson, 561 F. Supp.

2d at 579 (“The opt-in plaintiffs’ characterizations of their
day-to-day work activities presented through trial erased the
Court's earlier understanding that plaintiffs were similarly
situated.”).
The fact that BAYADA has presented individualized defenses
does not sway the Court in a different direction.

The obvious

common theme of these defenses was that CSMs are appropriately
exempted from overtime – Hoffman and Gupton were properly
exempted from overtime because they managed employees.
Potteiger’s activities may not have reflected exempt duties
because she disengaged from her work.

A “court may exercise its

discretion to determine whether individual defenses make a
collective action unmanageable.”

Prise v. Alderwoods Grp.,

Inc., 817 F. Supp. 2d 651, 671 (W.D. Pa. Sept. 9, 2011).

The

Court disagrees with BAYADA that its individualized defenses
necessitate a result different from Stillman.

See Andrako v.

U.S. Steel Corp., 788 F. Supp. 2d 372, 382 (W.D. Pa. Mar. 9,
21

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2011) (“Defendant will assert similar defenses against most, if
not all, class members, even if the application of the defenses
will vary depending on individual circumstances.

Nothing about

the collective forum will prevent Defendant from employing these
defenses.

To the contrary, during trial, Defendant will be free

to present evidence of lawful employment policies and practices,
cross-examine individual representative plaintiffs, and to call
others with material testimony helpful to Defendant's case.
Moreover, requiring the court to apply similar defenses in 254
separate trials as opposed to against plaintiffs within the
collective action hardly promotes efficiency.” (citations
omitted)); see also Garcia v. Vertical Screen, Inc., No. 184718, 2022 WL 282541, at *4 (E.D. Pa. Jan. 31, 2022) (granting a
motion for final certification and finding that the
individualized defenses identified – attacks on the plaintiffs’
credibility requiring individualized cross-examinations – were
insufficient to defeat certification).
Lest the Court’s difficulty in arriving at this decision be
lost in its text, this opinion should not be interpreted as it
finding that a jury could not have reasonably concluded that
Plaintiffs failed to adequately demonstrate representativeness.
It also does not foreclose the possibility that a similar motion
following a new trial featuring new evidence would be met with a
different holding.
22

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Having concluded that judgment as a matter of law is
inappropriate as to the alleged deficient representativeness,
the Court also rejects the related arguments raised in BAYADA’s
brief.

BAYADA, for instance, attacks the selection of the seven

Testifying Plaintiffs – claiming that Plaintiffs “selected the
seven individuals that they believed gave them the best chance
of winning, without regard to whether their experiences were
indicative of the others or whether they fairly represented the
class.”

(ECF 328-1 at 20-21).

In actuality, the Court

deciphers from the parties’ amended joint pretrial order that
the seven Testifying Plaintiffs were selected from a subset of
Plaintiffs for which depositions were taken during discovery.
(ECF 269 at 29).

It does not surprise the Court that Plaintiffs

might have selected from that subset the members they thought
would best present their claims and to the extent that that
alleged strategy inadequately accounted for representativeness,
Plaintiffs risked – and continue to risk – that a jury or the
Court may find that Testifying Plaintiffs inadequately represent
the other members of the collective.

The answer to BAYADA’s

contention, therefore, is – as it has done – to challenge
Testifying Plaintiffs with its own testimony and evidence.

See

Strauch, 2018 WL 4539660, at *14.
The Court further is unpersuaded by BAYADA’s citation to
Green v. Harbor Freight Tools USA, Inc., 888 F. Supp. 2d 1088
23

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(D. Kan. Aug. 17, 2012), for support of the proposition that –
because of Plaintiffs’ refrain throughout trial that paper job
descriptions, resumes, and similar materials do not count as
compared to actual practices – representativeness and liability
may not be premised on corporate policies and individualized
evidence is further untenable.

(ECF 328-1 at 23-24).

Green was decided at the decertification stage and merely
determined that, because plaintiffs argued that their job
description did not accurately depict their job duties, a factintensive inquiry as to individual plaintiffs’ duties was
necessary and their mere classification as exempt did not itself
render them similarly situated or do away with the need for
individualized factual determinations.
99.

888 F. Supp. 2d at 1098-

Here, a trial featuring individualized testimony has

already been conducted with the Court largely agreeing with
BAYADA’s proposed procedures.

Furthermore, “at trial,

plaintiffs can rely on representative evidence to prove that the
defendant's practices or policies impacted similarly situated
employees,” Stillman, 2009 WL 1437817, at *17, and their burden
may be sustained even when the employer has maintained official
policies consistent with the FLSA, see Reinig, 2017 WL 8941219,
at *13.
Finally, the Court disagrees with BAYADA’s position that
permitting Plaintiffs to prevail with the evidence presented
24

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would violate its due-process rights or the Rules Enabling Act.
(ECF 328-1 at 28-30).

The Rules Enabling Act permits the

Supreme Court to establish general rules of practice and
procedure so long as said rules do “not abridge, enlarge or
modify any substantive right.”

28 U.S.C. § 2072(a)-(b).

Persuasively, in Tyson Foods, Inc. v. Bouaphakeo, the Supreme
Court rejected an argument in favor of a broad prohibition of
representative evidence in class actions, noting that
representative samples – like the expert observations at issue
there – are often the only means of establishing liability and
concluding that if representative evidence would be relevant in
proving an individual claim, it could not be deemed improper
merely because it was presented on behalf of a class because
doing so would itself violate the Rules Enabling Act.

577 U.S.

442, 454-55 (2016); see also cf. Dzielak v. Whirlpool Corp., No.
2:12–89, 2017 WL 6513347, at *12 (D.N.J. Dec. 20, 2017)
(analyzing Tyson Foods, Inc. and concluding that the plaintiffs’
energy-expense estimates did not closely approximate the usage
of individual putative class members and would likely be
unusable for individual actions given the disparity in
individuals’ energy usage).

Here, unlike Wal–Mart Stores, Inc.

v. Dukes, 564 U.S. 338 (2011), which BAYADA cites, the Court has
found that Plaintiffs are similarly situated and the testimony
of other CSMs would provide appropriate and persuasive evidence
25

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if the case at bar was brought as sixty-two individual actions.
See Tyson Foods, Inc., 577 U.S. at 458-59 (differentiating Dukes
as the employees there were not similarly situated while in
Tyson Foods, Inc. the employees worked at the same facility,
performed the same work, and were paid under the same policy and
thus could have introduced the expert study in individual
actions).
Further, the Court is not persuaded by BAYADA’s argument
that it is unable to assert individual defenses against NonTestifying Plaintiffs and does not even have sufficient evidence
due to limits placed on depositions, interrogatories, and
document requests.

(ECF 328-1 at 29).

Courts have rejected

similar due-process claims regarding representative testimony.
See Pierce v. Wyndham Vacation Resorts, Inc., 922 F.3d 741, 749
(6th Cir. 2019) (rejecting the defendant’s argument that the use
of representative testimony violated its due-process rights when
it was permitted to cross-examine each testifying witness and
call anyone it so chose as a witness); see also Heath v. Google
LLC, 345 F. Supp. 3d 1152, 1177 (N.D. Cal. Aug. 27, 2018)
(concluding, in the context of a motion to decertify an Age
Discrimination in Employment Act case, that the plaintiffs
persuasively contended that collective treatment safeguarded
their due-process rights as they were less able to bear the cost
of multiple individual trials than the defendant).
26

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B. BAYADA’s Motion Seeking to Apply the FWW Method to
Calculate Damages (ECF 329)
BAYADA next advances that, should any individual Plaintiff
prevail, the FWW method should be applied to damages for
overtime pay because the record demonstrates that Plaintiffs
each understood that they were to be compensated by the same
salary no matter how many hours they worked.
5).

(ECF 329-1 at 2-

BAYADA advances that the FWW has been applied to FLSA

misclassification cases such as this one and no reasonable jury
could find that Plaintiffs did not understand that their
salaries were to compensate them for all hours worked.

(Id. at

5-7).
The FWW is rooted in the Supreme Court’s decision Overnight
Motor Transportation Co. v. Missel, in which a rate clerk was
paid a fixed weekly salary regardless of hours worked and sought
to collect unpaid overtime.

See 316 U.S. 572, 574-75 (1942).

Faced with the task of computing overtime for employees
compensated by a fixed rate, the Supreme Court concluded that
Where the employment contract is for a weekly wage
with variable or fluctuating hours the same method of
computation produces the regular rate for each week.
As that rate is on an hourly basis, it is regular in
the statutory sense inasmuch as the rate per hour does
not vary for the entire week, though week by week the
regular rate varies with the number of hours worked.
It is true that the longer the hours the less the rate
and the pay per hour. This is not an argument,
however, against this method of determining the
regular rate of employment for the week in question.
27

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Id. at 580.
Missel was incorporated into the FLSA in 1968, see
Verderame v. RadioShack Corp., 31 F. Supp. 3d 702, 704 (E.D. Pa.
July 10, 2014), and as currently in force 3 permits use of the FWW
to compute overtime when the employee’s work hours fluctuate
week to week, the employee receives a fixed salary that does not
fluctuate with the hours worked, the fixed salary exceeds the
minimum hourly wage during weeks in which the number of hours
worked is greatest, the employee and employer have a clear and
mutual understanding that the fixed salary represents
compensation for all hours worked regardless of number, and the
employee receives overtime compensation for all overtime hours
worked of no less than half the regular rate of pay – the
regular rate varying week to week depending on the hours
actually worked, 29 C.F.R. § 778.114(a).
The parties’ briefs do not expressly question to applicability
of the most recent revision to Section 778.114 and, in fact,
BAYADA relies on the 2020 revision to rebut Plaintiffs’
opposition to the extent that they argue that their on-call pay
renders the FWW inappropriate. (ECF 333 at 3). Persuasively,
the Eleventh Circuit recently concluded that the 2020 revision
to Section 778.114 was inapplicable to the matter at issue there
because the relevant work period for the plaintiff was from 2011
to 2016 and “administrative rules generally are not applied
retroactively.” See Hernandez v. Plastipak Packaging, Inc., 15
F.4th 1321, 1326 n.3 (11th Cir. 2021) (quoting Hargress v. Soc.
Sec. Admin., Comm'r, 883 F.3d 1302, 1308 (11th Cir. 2018)).
Because the Court concludes that differences between the 2020
revision and its predecessor are not outcome-determinative here,
the Court will refer to the present version and reference its
predecessor as relevant.
3

28

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The regulation acknowledges that “[t]ypically, such fixed
salaries are paid to employees who do not customarily work a
regular schedule of hours and are in amounts agreed on by the
parties as adequate compensation for long workweeks as well as
short ones, under the circumstances of the employment as a
whole,” id. at § 778.114(c), and provides helpful illustrations
explaining how the FWW calculates overtime in practice.

For

instance, for an employee earning $600.00 per week and working
thirty-seven-and-a-half, forty-four, fifty, and forty-eight
hours over four weeks, their regular hourly rates would be
$16.00, $13.64, $12.00, and $12.50, respectively – and they
would be owed $600.00 with no overtime for the first week,
$627.28 for the second week ($600.00 plus four times half the
regular rate of $13.64), $660.00 for the third week ($600.00
plus ten times half the regular rate of $12.00), and $650.00 for
the fourth week, ($600.00 plus eight times half the regular rate
of $12.50).

Id. at § 778.114(b)(1); see also Morales v. Aqua

Pazza LLC, No. 20-6690, 2022 WL 1718050, at *6 n.10 (D.N.J. May
27, 2022) (acknowledging that under the FWW “the ‘regular rate’
must be separately calculated for each week by dividing the
weekly salary by the hours actually worked by the employee
during that week.”).

“[T]he burden is on the employer, and not

the employee, to establish that the parties mutually agreed upon
th[e FWW] form of compensation.”
29

Bredbenner v. Liberty Travel,

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Inc., No. 09–cv–00905, 2009 WL 2391279, at *2 (D.N.J. July 31,
2009).
Plaintiffs respond by asserting, among other arguments, 4
that BAYADA has failed to demonstrate its burden of showing that
there was a clear and mutual understanding and urges the Court
to follow out-of-jurisdiction decisions finding the FWW to be
inappropriate for misclassification cases in which overtime has
not been paid.

(ECF 330 at 6-7, 12-16).

Interpreting the earlier version of Section 778.114, the
court in Depalma v. Scotts Co., LLC expressly found that the FWW
applies to exemption misclassification cases.
WL 2417706, at *13 (D.N.J. June 10, 2019).

No. 13-7740, 2019

Depalma dealt with

what was interpreted as a motion in limine for the FWW to be
applied to damages and recognized a circuit split as to whether
Section 778.114 or Missel provided the authority to use the FWW
The Court briefly recognizes Plaintiffs’ argument that judgment
here would be premature. (ECF 330 at 3-5). While the Court
finds the prematurity argument more persuasive here than in
Plaintiffs’ brief as to representativeness because Phase 2 of
the trial never occurred, BAYADA correctly notes, (ECF 333 at
2), that Plaintiffs indicated in the amended joint final
pretrial order that they “intend[ed] to primarily utilize
Defendant’s business records a[s] to the number of full
workweeks worked by the plaintiffs listed in Exhibit A, their
respective dates of employment, and their rates of compensation”
to present damages and the sole witness to be presented would
have been Nicoletta Roditti “to merely explain the math, the
application of the findings of the jury, and present the final
amount of damages,” not any relevant clear and mutual
understanding, regular rate of pay, or the like,(ECF 269 at 1516).
4

30

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in misclassification cases.

Id. at *1, 11-12 (discussing cases,

including the Seventh Circuit’s decision in Urnikis-Negro v.
American Family Property Services, 616 F.3d 665, 666, 675-76,
678, 681 (7th Cir. 2010), which found that Section 778.114 does
not provide authority to apply the FWW method to
misclassification cases as it is not remedial in nature and
“requires that the parties mutually understand that the employee
is paid for overtime work, which is an impossible agreement to
reach if the employer believes the employee to be [exempt] and
therefore not subject to overtime”).

Absent binding precedent

from the Third Circuit, Depalma followed the approach of
Urnikis-Negro and the Fourth Circuit’s decision in Desmond v.
PNGI Charles Town Gaming, L.L.C., 630 F.3d 351 (4th Cir. 2011),
and concluded that the FWW could be used for damages in
misclassification cases so long as the parties had a mutual
understanding that compensation was for all hours worked and the
salary provided did not dip below minimum wage.
(citing Desmond, 630 F.3d at 354).

Id. at *13

Depalma determined that

sufficient evidence was brought forth by the defendant that
there was such a clear and mutual understanding and rejected the
plaintiffs’ contention that they were not initially aware that
they would work as many hours as they did – finding that the
true issue was whether there was a mutual understanding that
their weekly salaries would represent their compensation
31

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regardless of hours worked.

Id. at *13.

The court in Devine v. Northeast Treatment Centers, Inc.,
too, noted a circuit split in applying Section 778.114 or Missel
to misclassification cases and recognized that courts within the
Third Circuit, including Depalma, had not relied on Section
778.114 because “‘the best approach is not to conflate the
fluctuating workweek regulation with the damages calculation’
because ‘the fluctuating workweek regulation itself neither
authorizes nor prohibits the use of the half-time method in
assessing damages in an FLSA misclassification case.’”

No. 20-

02417, 2021 WL 4803819, at *6 (E.D. Pa. Oct. 14, 2021) (quoting
Seymour v. PPG Indus., Inc., 891 F. Supp. 2d 721, 733 (W.D. Pa.
2012)).

Ultimately, the court found that the FWW was applicable

as the plaintiffs understood that their salaries represented
compensation for all time worked.

Id.

The Court is satisfied that the FWW may be applied to
misclassification cases, but nonetheless pauses as to its
application in the present matter.

BAYADA’s brief does well to

highlight Plaintiffs’ testimony that they understood that their
salaries represented compensation for all hours worked.

(ECF

329-1 at 2-3 (citing Trial Tr. 122:22 to 123:2, 278:15-17,
360:25 to 361:2, 533:15-17, 705:20-23, 787:3-5, 908:23-25,
922:12-13)).

However, the Court holds that the clear and mutual

understanding between the parties is not limited to the fact
32

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that an employee’s fixed salary is intended to compensate them
regardless of the number of hours worked, but rather must also
contemplate that the employee’s hours would actually fluctuate.
See Menefee v. N-Title, LLC, No. A-19-CV-00737, 2021 WL 3413319,
at *9 (W.D. Tex. July 9, 2021) (“Defendants would need to show
that there was an agreement between the parties that Plaintiff's
regular hours would fluctuate on a weekly basis, not that
Plaintiff understood she would have to work whatever hours were
required for the job.”).

Actual fluctuation of hours is a

precondition for applying the FWW under both Missel, see Black
v. SettlePou, P.C., 732 F.3d 492, 499 (5th Cir. 2013) (“As
directed by Missel, the FWW method may only be applied to
calculate overtime premiums when there is a contractual
agreement between the employer and the employee that the
employee will be paid a fixed weekly wage for hours that
fluctuate from week to week.” (emphasis added)), and Section
778.114, see 29 C.F.R. § 778.114(a)(1) (including “[t]he
employee works hours that fluctuate from week to week” as among
the predicates for applying the FWW); 29 C.F.R. § 778.114(a)
(effective May 5, 2011 to Aug. 6, 2020) (“An employee employed
on a salary basis may have hours of work which fluctuate from
week to week and the salary may be paid him pursuant to an
understanding with his employer that he will receive such fixed
amount as straight time pay for whatever hours he is called upon
33

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to work in a workweek, whether few or many.”).
At least some evidence at trial indicated that Plaintiffs
worked consistent hours.

(See Trial Tr. 125:5-23 (Vargas-Smith

worked 8:00 a.m. to 6:00 p.m. Monday through Thursday and 8:00
a.m. to 5:00 p.m. on Fridays); id. at 250:1-8, 251:4-11
(Yarbrough understood that she would work forty hours per week
during office hours of 8:30 a.m. to 5:30 p.m. and, in practice,
typically worked from 8:00 a.m. to 6:00 p.m.); id. at 353:25 to
354:14 (Hess understood that she would work slightly over forty
hours per week during office hours of 8:30 a.m. to 5:00 p.m. and
would arrive between 7:00 a.m. and 7:30 a.m. and leave by 5:00
p.m. to 5:30 p.m.); id. at 462:7:12, 462:23 to 463:10 (Hoffman
originally understood that she would work 8:30 a.m. to 5:00 p.m.
and in practice worked 8:00 a.m. to 5:30 p.m.); id. at 598:8-16,
638:15-23 (Gupton initially understood her workday to be 8:30
a.m. to 5:00 p.m., but actually worked from 8:20 a.m. to 5:30 or
6:00 p.m. daily); id. at 910:4-14 (Potteiger was told that her
hours would be 8:30 a.m. to 5:00 p.m., but she typically arrived
between 8:00 and 8:30 a.m. and left between 6:00 and 6:30
p.m.)).
Evidence that hours were intended to be consistent was
elicited from non-Plaintiffs, as well.

For instance, Toscano,

while reviewing a training record published to the jury,
acknowledged that it stated “that the standard workday for full34

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time office employees is 8:30 to 5:00,” (id. at 1171:16-23), and
Peterkin testified that the expected workday was 8:30 a.m. to
5:00 p.m., (id. at 1467:13-14).

Even if Plaintiffs’ start and

end times varied slightly day to day, it does not necessarily
follow that their cumulative hours worked actually fluctuated
week to week or that any such fluctuation was part of any clear
and mutual understanding.
The Court cannot thus find that Plaintiffs’ hours were
contemplated to – or did in fact – fluctuate.

See Menefee, 2021

WL 3413319, at *9; Nam v. Permanent Mission of Republic of Korea
to United Nations, No. 21-cv-06165, 2023 WL 2138601, at *22 n.17
(S.D.N.Y. Feb. 21, 2023) (“The record in this case does not
support the use of th[e FWW] method because Plaintiff's
employment contracts state that he was expected to work, and was
compensated for working, a regular 9:00 A.M. to 6:00 P.M. work
schedule and was then provided additional compensation for off
schedule hours.”); see also cf. Rene v. Fulton Cnty. Sch. Dist.,
No. 1:19-CV-04721, 2020 WL 7496841, at *2 (N.D. Ga. Nov. 2,
2020) (finding Section 778.114(a)(1) to be satisfied because the
school resource officers did not work a set schedule, but rather
had their hours vary week to week); but see Diaz v. Bloomberg,
L.P., No. 22-CV-7251, 2023 WL 3505522, at *3 (S.D.N.Y. May 17,
2023) (concluding that the plaintiff’s hours fluctuated week to
week because she began working fifteen to thirty minutes early
35

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on multiple occasions, worked beyond the end of her shift daily,
and worked through lunch two or three times per week and
rejecting the plaintiff’s argument that her hours did not
“‘materially’ vary”).
This holding should not be interpreted as the Court
concluding that the FWW would be inapplicable to Plaintiffs
following a future trial.

Rather, it merely recognizes that

“[u]ltimately, the ‘employee's regular rate of pay is
a factual issue, which requires a threshold determination
whether the salary was intended to compensate for a fixed number
of hours, or alternatively for all hours worked.’”

See Devine,

2021 WL 4803819, at *6 (quoting Seymour, 891 F. Supp. 2d at
733).

As with BAYADA’s motion regarding representativeness, the

Court cannot conclude based on the evidence presented at trial
that no jury could find against BAYADA as to the applicability
of the FWW.

See Baran, 401 F. Supp. 3d at 479.

Its motion is

therefore denied.
IV. Conclusion
For the reasons stated above, BAYADA’s renewed motions for
judgment as a matter of law, (ECF 328; ECF 329), will be denied.
An Order consistent with this Opinion will be entered.

Date: May 25, 2023
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
36