IVANOVS et al v. BAYADA HOME HEALTH CARE, INC.
Filing
56
OPINION. Signed by Judge Noel L. Hillman on 9/24/2018. (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
HOMANS PECK LLC
1835 MARKET ST
SUITE 1050
PHILADELPHIA, PA 19103
On behalf of Defendant
HILLMAN, District Judge
Presently before the Court is the motion of Plaintiffs to
conditionally certify their collective action claims for
Defendant’s alleged violations of the federal Fair Labor
Standards Act.
For the reasons expressed below, Plaintiffs’
motion will be granted.
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 Fair
Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”).
According to Plaintiff, 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 Heath CSMs and Home Care CSMs
perform the same primary duty – filling shifts for nursing and
medical paraprofessional care in clients’ homes – but the method
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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
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.
Plaintiffs have moved for conditional certification of
their FSLA collective action, and have proposed two nationwide
sub-classes.
Plaintiffs propose as sub-class 1 BAYADA Home
Health CSMs who worked for BAYADA at any location nationwide
during the three years prior to the Court’s order allowing
notice.
Plaintiffs propose as sub-class 2 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.
Plaintiffs have also provided forms of notices to be sent out to
all potential opt-in plaintiffs, as well as proposed the modes
of dissemination of those notices.
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Defendant has objected to Plaintiffs’ motion, arguing that
because 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, Plaintiffs’ FLSA claims cannot be pursued as a
nationwide collective action.
Defendant also opposes
Plaintiffs’ forms of notice and methods of dissemination.
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
pursuant to 28 U.S.C. § 1331.
B.
Analysis
Plaintiffs are seeking to conditionally certify this matter
as a collective action under the FLSA, and to authorize Courtsupervised notice to similarly situated employees.
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
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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
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 . . . .
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Pearsall-Dineen, 27 F. Supp. 3d at 569-71 (some citations and
quotations omitted).
In this case, 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
have presented evidence that:
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.
Plaintiffs and eleven Opt-In Plaintiffs who joined this
case worked at more than fifteen BAYADA locations in eleven
states. Six of the Plaintiffs and Opt-Ins worked in Home
Health Offices, five worked in Home Care offices, and two
worked in an office providing Home Health and Home Care
services. 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;
• 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.
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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.
Defendant argues that Plaintiffs’ purported evidence to
show the commonality between all CSMs across the country is
simply general corporate policy and not specific to each CSM in
each of its 330 offices.
Defendant also points to the
differences between the two Plaintiffs’ testimony about each of
their jobs to show that if the two named Plaintiffs are not
similar, then Plaintiffs cannot show that all the other CSMs are
similar. 1
1
Defendant also argues that Plaintiff Ivanovs is not a proper
plaintiff because when she was terminated from employment with
Defendant she signed a release and separation agreement, which
released all past and future claims against Defendant, and
required her to certify she had informed Defendant of any
complaints or concerns she had about her employment at the time
she signed the release. Plaintiff counters that that the
agreement did not specifically release any FLSA claims, and that
FLSA claims can only be released upon a court’s or the
Department of Labor’s approval. Because Defendant has not moved
to dismiss Plaintiff Ivanovs’ claims against it, the issue is
not before the Court to decide. The Court notes, however,
claims brought under the FLSA may only be settled or compromised
by either: (1) the Secretary of the Department of Labor
supervising payments to employees under § 216(c); or (2) a
district court approves the settlement pursuant to 29 U.S.C §
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Plaintiffs counter that Defendant’s argument fails to
recognize that Plaintiffs have proposed two sub-classes to
address the differences between Home Care CSMs and Home Health
CSMs, even though many of their duties overlap.
Plaintiffs also
reiterate that their burden at this stage is not to establish
that their claims should be certified as a collective action,
but rather to only provide a “modest” showing that their claims
are common to other employees of Defendant in the same positions
so that those employees may be identified to determine whether a
collective action may stand.
The Court recognizes that the question of whether an
employer has properly classified a position as exempt from the
FLSA overtime pay requirements compels a court to perform “an
individual, fact-specific analysis of each employee’s job
responsibilities under the relevant statutory exemption
criteria” to determine whether all employees in that position
uniformly carried out similar duties and responsibilities.
Aquilino v. Home Depot, U.S.A., Inc., 2011 WL 564039, at *7
(D.N.J. 2011) (citing Morisky v. Pub. Serv. Elec. & Gas Co., 111
F. Supp. 2d 493, 495 (D.N.J. 2000)) (other citations omitted).
That analysis is performed, however, at the “decertification”
stage, and not at the initial “conditional certification” stage.
216(b). Singleton v. First Student Management LLC, 2014 WL
3865853, at *7 (D.N.J. 2014) (citations omitted).
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Id.
“The sole consequence of conditional certification is the
sending of court-approved written notice to employees, who in
turn become parties to a collective action only by filing
written consent with the court.”
at 1530.
Genesis Healthcare, 133 S. Ct.
Once conditional certification is granted and notice
has been sent to the potential members of the collective action,
the Court then performs the second inquiry - commonly known as
the “decertification stage” – into whether the plaintiffs are
similarly situated to the remainder of the members of the
collective action.
Aquilino, 2011 WL 564039 at *7 (D.N.J. 2011)
(citing Morisky, 111 F. Supp. 2d at 497).
During the second
inquiry, plaintiffs are subject to a higher burden of proof
because the court has much more information on which to base its
decision.
Id. (citations omitted).
At that later point, “Defendant can challenge plaintiffs’
and any opt-in plaintiffs’ claims that it violated the FLSA in
one fell swoop after the scope of the collective of plaintiffs
is established.”
Jones v. SCO, Silver Care Operations LLC, 2015
WL 5567355, at *5 (D.N.J. 2015) (citing Adami v. Cardo Windows,
Inc., 299 F.R.D. 68, 80 (D.N.J. 2014) (“Because a full
evaluation of the merits is not appropriate at this [conditional
certification] stage, it is sufficient that Plaintiffs share
similar job duties and share a similar business relationship
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with Defendants.”); see also 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”)).
The Court finds that Plaintiffs have easily met the “fairly
lenient standard” of showing the common nexus between the named
and opt-in Plaintiffs’ status as exempt employees who contend
they should actually be classified as non-exempt employees, and
the other Home Health and Home Care CSMs in all of Defendant’s
locations nationwide.
Plaintiffs have developed this evidence
from the depositions of two named Plaintiffs, two Rule 30(b)(6)
witnesses, the declarations of ten additional Opt-Ins, and
Defendant’s corporate policies and procedures.
This evidence is
more than adequate for conditional certification.
The next step, therefore, is to determine the method by
which potential opt-in plaintiffs are informed of this case and
provided the opportunity to join the litigation.
Plaintiffs
have provided a proposed notice and consent form, and request
that notice be disseminated by first class mail, email, and
posting in each office’s break room.
Plaintiffs also ask that
Defendant provide them with a list, in electronic format, of all
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persons employed by Defendant as Home Health CSMs and Home Care
CSMs from three years prior to the date of the Court’s order to
the present including names, addresses, telephone numbers, dates
of employment, locations of employment, social security numbers,
and work and personal e-mail addresses.
Defendant objects to
practically all of Plaintiffs’ proposals.
Now that the Court has granted the conditional
certification of Plaintiffs’ two nationwide sub-classes, which
confers onto Plaintiffs the right to distribute a notice of this
putative collective action to all potential opt-in plaintiffs,
Defendant is obligated to participate in this process.
See
Essex v. Children's Place, Inc., 2016 WL 4435675, at *7 (D.N.J.
2016) (citing Pearsall-Dineen v. Freedom Mortg. Corp., 27 F.
Supp. 3d 567, 574 (D.N.J. 2014)) (other citations omitted) (“In
FLSA collective action cases, courts routinely order employers
to produce a list of potential class members to plaintiffs.”).
Plaintiff, however, also has an obligation to not demand the
moon when the stars are sufficient.
See, e.g., Steinberg v. TD
Bank, N.A., 2012 WL 2500331 at *7 (D.N.J. 2012) (citing
Bredbenner v. Liberty Travel, Inc., 2009 WL 2391279 at *3 n.3
(D.N.J. 2009) (“Courts generally release social security numbers
only after notification via first class mail proves
insufficient.”); Ritzer v. UBS Financial Services, Inc., 2008 WL
4372784 at *4 (D.N.J. 2008) (“Unless notification via first
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class mail proves insufficient, social security numbers and
telephone numbers should not be released.”)).
Accordingly, the Court will afford the parties thirty days
to meet and confer on a form of notice, the method of
dissemination of that notice, and the database of employees to
which the notice will be distributed. 2
Plaintiffs shall provide
the Court with a status update at the expiration of the thirtyday period, if not earlier.
Although the Court strongly
encourages the parties to come to an agreement on these issues,
the parties may inform the Court via letter filed on the docket
of any unresolved disputes.
CONCLUSION
For the reasons expressed above, Plaintiffs have met the
standard for conditional certification of their two proposed
sub-classes on their claims that Defendant violated the FLSA by
2
“District courts have the authority to supervise the
notification process, including how much time plaintiffs are
given to notify class members, how class members are to be
notified, and what contact information plaintiffs are afforded.”
Steinberg, 2012 WL 2500331 at *6 (citing Hoffmann–La Roche, 493
U.S. at 170–72 (“By monitoring preparation and distribution of
the notice, a court can ensure that it is timely, accurate, and
informative.”); Pereira v. Foot Locker, Inc., 261 F.R.D. 60, 69
(E.D. Pa. 2009) (defining the appropriate means of notice,
determining whether posting notice is appropriate, determining
the appropriate notice period, and directing the parties to meet
and confer regarding the wording and form of the notice);
Ritzer, 2008 WL 4372784 at *4–5 (stating that “courts possess
broad discretion to provide court-facilitated notice,”
authorizing the specific wording of an entire notice provision,
and determining an appropriate means of notice)).
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classifying Home Health CSMs and Home Care CSMs as exempt
instead of non-exempt.
The parties shall have thirty days to
meet and confer on the next steps as directed above.
An
accompanying Order will be entered.
Date: September 24, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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