Severin v. Project OHR, Inc.
Filing
74
OPINION AND ORDER: re: #101965 63 MOTION to Certify Class. filed by Galina Cotova, Natasha Severin. The Plaintiffs' March 30 motion for class certification of their NYLL claim is denied. (Signed by Judge Denise L. Cote on 6/20/2012) (jfe) Modified on 6/20/2012 (jab).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------- X
:
NATASHA SEVERIN and GALINA COTOVA,
:
Individually and on Behalf of All Other
:
Persons Similarly Situated,
:
Plaintiffs,
:
:
-v:
:
PROJECT OHR, INC.,
:
Defendant.
:
:
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10 Civ. 9696 (DLC)
OPINION & ORDER
APPEARANCES:
For Plaintiffs:
Jennifer L. Smith
Jason J. Rozner
Beranbaum Menken LLP
80 Pine Street, 32nd Floor
New York, NY 10005
For Defendant:
Jennifer B. Rubin
Michael S. Arnold
Mintz Levin Cohn Ferris Glovsky and Popeo, P.C.
The Chrysler Center
666 Third Avenue
New York, NY 10017
DENISE COTE, District Judge:
Plaintiffs Natasha Severin (“Severin”) and Galina Cotova
(“Cotova”) bring the above-captioned action on behalf of
themselves and a putative class of similarly situated persons
who are employed by defendant Project OHR, Inc. (“OHR”), as
providers of home health care for the elderly and infirm in and
around the City of New York.
Plaintiffs allege that OHR failed
to pay them and putative class members the minimum wage and
overtime, in violation of various provisions of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 206 et seq., and New York
Labor Law (“NYLL”), Art. 6 § 190 et seq., and Art. 19 § 650 et
seq.
The plaintiffs have moved for class certification of their
NYLL claims pursuant to Rules 23(a) and 23(b)(3), Fed. R. Civ.
P.
The motion is denied.
BACKGROUND
OHR is a nonprofit organization providing home health care
services in and around New York City to disabled, frail and
elderly individuals who qualify for government assistance.
It
operates under contract with the New York City Department of
Social Services/Human Resources Administration (“HRA”), which
refers Medicaid-eligible individuals to OHR and funds OHR’s
operations.
OHR serves clients referred by HRA principally by
sending home attendants to provide companionship assistance at
clients’ residences.
When HRA refers an individual client to OHR for care, HRA
provides OHR with a “service authorization” for that client,
which authorizes OHR to provide a specific number of hours of
care for a specific number of days a week.
While some OHR
clients are only authorized to receive a few hours of care each
2
week, many are authorized to receive round-the-clock care.
OHR
assigns home attendants to provide care to an individual client
based upon the hours authorized for that client in the client’s
service authorization.
When a client is assigned by HRA to OHR, an OHR nurse
visits the client and develops a “Client Care Plan”, which
provides guidance for home attendants assisting the client,
including setting forth the tasks home attendants are expected
to perform for the client.
Home attendants may be expected to
provide both personal care services and household services on
behalf of clients, as described in OHR’s “Personnel Policies and
Practices for Home Attendants Handbook” (“Home Attendant
Handbook”).
Personal care services may include assistance with
ambulation, bathing, dressing, feeding, personal grooming,
toileting, and taking medications.
Home attendants may also be
expected to escort clients to visit doctors and clinics, and to
run errands for clients.
Household services that may be
required include basic bathroom and kitchen cleaning and
tidying, doing the client’s laundry, sweeping, vacuuming, and
dusting, and taking out trash.
OHR schedules home attendants to work three types of
shifts.
The first, a regular hourly shift, is a daytime shift
that can range from a few hours to 12 hours.
The second occurs
where HRA has authorized round-the-clock care and supervision.
3
OHR then schedules a split shift, where one home attendant works
a 12-hour daytime shift and a second home attendant works a 12hour nighttime shift.
Home attendants scheduled to a regular or
split shift are subject to dismissal for sleeping.
The third,
which is the only shift at issue in the plaintiffs’ minimum wage
claim, is a sleep-in shift.
During a sleep-in shift, a single
home attendant spends 24 hours in the client’s residence, but is
expected to spend part of that time sleeping.
OHR keeps track
of the hours worked by home attendants by requiring them to call
an “800” number from their clients’ home telephones at the start
and end of each shift.
The data collected by this automated
system is fed directly into OHR’s payroll.
According to OHR, those home attendants on sleep-in shifts
are instructed to take an eight-hour window in which to sleep
and to get at least five hours of continuous sleep.
The Home
Attendant Handbook, distributed to all OHR home attendants,
states: “Home attendant employees are prohibited from working
more than sixteen hours per day.”
Blossom King, an OHR home
attendant, submitted an affidavit testifying that she and other
home attendants were told at their initial orientation and at
twice yearly training sessions that on sleep-in shifts they “had
at least an eight hour window of sleep and should at least get
five hours of sleep without being disturbed by the client.”
D’Vorah Kohn (“Kohn”), OHR’s executive director, testified that
4
OHR “generally assumes [home attendants working sleep-in shifts]
work at least during daytime hours.
twelve hours.
They should work up to
They should be sleeping at least five consecutive
hours and hopefully more than that, but at least five
consecutive.”
Kohn further testified that OHR’s home attendants
were reminded of this policy during the twice-yearly training
sessions, and that clients and their families are also informed
of the policy.
Susan Schaefer (“Schaefer”), OHR’s personnel director,
testified that the amount of sleep a sleep-in home attendant
could get in a night “depends on the patient’s care [and]
[q]uality of . . . his condition.”
Schaefer testified that OHR
home attendants were told that on a sleep-in shift it was their
responsibility to assist a client if the client awoke during the
night; if the client had difficulty sleeping, then the home
attendant would have to “help the patient at least once or twice
a night.”
When asked how a sleep-in home attendant was expected
to respond if a client required assistance continuously
throughout the night, Schaefer testified that home attendants
were told to report the problem to the OHR nurse assigned to the
client.
The nurse could then request that HRA authorize OHR to
provide split shift care to the client.
Shaefer testified,
however, that unless and until such an increase was authorized,
5
the home attendant would have to “try [their] best.
That’s all
we can tell them.”
Kohn believes that home attendants on sleep-in shifts
generally receive at least five hours of continuous sleep.
OHR
does not track whether home attendants receive five hours of
continuous sleep.
Rather, it relies upon its home attendants to
report clients’ increased restlessness and need for assistance
during nighttime hours.
According to Kohn, “[a] home attendant
can call the office at any time and speak to the personnel
specialist or the nurse.
Or if they’re not available, they can
ask to speak to a staff member who can guide them to the right
personnel.”
OHR has a 24-hour call line for home attendants to
report problems and ask questions.
Both of the named plaintiffs regularly worked sleep-in
shifts in addition to regular hourly shifts.
Severin worked as
a home attendant for OHR from January 2005 through March 2005,
and then from July 2005 through December 2010.
Cotova was
employed as an OHR home attendant from November 2004 through
November 2007.
Severin testified that over the course of her
employment as an OHR home attendant, she frequently worked
multiple sleep-in shifts over the course of a week, sometimes
for multiple clients and sometimes for a single client.
Severin
stated that she had worked with more than a hundred clients
while an OHR home attendant.
She testified that on a sleep-in
6
shift, “it’s practically not possible to sleep,” and that OHR
gave her “clients who woke up very many times.”
Severin
testified that a specific client had to be turned over in her
sleep every two hours to prevent bed sores.
According to
Severin, she informed an OHR nurse, who “said that we did the
right thing, that we were turning her every two hours and that
we are good workers.”
Cotova also testified that when working
sleep-in shifts her clients frequently required her assistance
during the night.
OHR employs approximately 1700 home attendants to provide
service for approximately 1200 clients.
As of April 2008, OHR
home attendants on regular hourly or split shifts are paid
$10/hour for weekdays and $11.25/hour for weekends.
Home
attendants working sleep-in shifts are paid the equivalent of
twelve hours at the regular hourly rate plus a single “per diem”
payment of $16.95, or $136.95 for a weekday sleep-in shift and
$157.95 for a weekend sleep-in shift.
PROCEDURAL HISTORY
On December 30, 2010, Severin filed this action.
On March
3, 2011, a first amended complaint was filed, which included
Cotova’s claims.
A second amended complaint was filed on May 27
against defendants OHR, the Metropolitan Council on Jewish
Poverty (“Met Council”), and Kohn.
7
The defendants moved to
dismiss the second amended complaint on June 17.
The June 17
motion was denied on September 2, except as to Met Council,
which was dismissed from the lawsuit.
On November 4, the plaintiffs moved for partial summary
judgment and authorization of FLSA collective action notice.
The plaintiffs’ November 4 motions for partial summary judgment
and collective action notice were denied on the record at a
December 16 conference.
As to the plaintiffs’ motion for
collective action notice, the Court stated:
I think it is premature to issue a collective
action notice, and I am not sure that one will ever be
appropriate in this case. Under the FLSA, the
companionship exemption will be a complete bar to
liability. The kinds of jobs that the companions hold
are individualized. They each have separate patients
or clients; they have to tailor their duties -- indeed
their hours -- everything to the needs of the
individual client; they are working under general
protocols and training and supervision that would, if
anything, enforce the exemption and not permit a
violation of the FLSA.
So the plaintiff would have to establish on an
individual plaintiff-by-plaintiff basis that somehow
they performed general household work more than 20
percent of the time, and of course any work, household
work, that is related to the fellowship, care or
protection of their client wouldn’t negate the
exemption. So there are so many fact-specific
inquiries -- what kind of household work was
performed; was it related to the fellowship, care and
protection of the client; if it was not so directly
related such that it could be considered general
household work, did it constitute more than 20 percent
of the time that the individual spent in that client’s
home or environment.
So these are very fact-specific inquiries that
aren’t really susceptible, I think, to a similarly-
8
situated person analysis that would support the
issuance of a collective action notice.
On December 8, the defendants moved for summary judgment on
Kohn’s individual liability.
The plaintiffs consented to the
dismissal of their claims against Kohn.
DISCUSSION
On March 30, 2012, the plaintiffs moved for class
certification of their NYLL claims pursuant to Rules 23(a) and
23(b)(3), Fed. R. Civ. P.
They seek to certify a class
“consisting of [OHR] home attendant employees who have been
employed by [OHR] at any time from December 30, 2004 through the
date [OHR] ceases its unlawful acts, who work 24-hour shifts
and/or who work more than 40 hours per week.”
The motion became
fully submitted on May 4.
I.
Requirements for Class Certification
“[A] district judge may not certify a class without making
a ruling that each Rule 23 requirement is met.”
In re Initial
Pub. Offering Sec. Litig. (“In re IPO”), 471 F.3d 24, 27 (2d
Cir. 2006).
Thus, the plaintiffs will be able to sue as
representatives of a class
only if (1) the class is so numerous that joinder of
all members is impracticable, (2) there are questions
of law or fact common to the class, (3) the claims or
defenses of the representative parties are typical of
9
the claims or defenses of the class, and (4) the
representative parties will fairly and adequately
protect the interests of the class.
Rule 23(a), Fed. R. Civ. P.; see Brown v. Kelly, 609 F.3d 467,
475 (2d Cir. 2010).
What matters to class certification is not the raising
of common ‘questions’ -- even in droves -- but, rather
the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the
litigation. Dissimilarities within the proposed class
are what have the potential to impede the generation
of common answers.
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)
(citation omitted).
If the Rule 23(a) criteria are satisfied,
an action may be maintained as a class action only if it also
qualifies under at least one of the categories provided in Rule
23(b).
Rule 23(b), Fed. R. Civ. P.; Brown, 609 F.3d at 476.
In this case, plaintiffs seek to certify a class under Rule
23(b)(3).
Rule 23(b)(3) permits certification “if the questions
of law or fact common to class members predominate over any
questions affecting only individual members, and . . . a class
litigation is superior to other available methods for fairly and
efficiently adjudicating the controversy.”
Rule 23(b)(3), Fed.
R. Civ. P.; Brown, 609 F.3d at 476.
“In evaluating a motion for class certification, the
district court is required to make a ‘definitive assessment of
Rule 23 requirements, notwithstanding their overlap with merits
issues,’ and must resolve material factual disputes relevant to
10
each Rule 23 requirement.”
re IPO, 471 F.3d at 41).
Brown, 609 F.3d at 476 (quoting In
“The Rule 23 requirements must be
established by at least a preponderance of the evidence.”
Brown, 609 F.3d at 476 (citation omitted).
In other words, the
district judge must “receive enough evidence, by affidavits,
documents, or testimony, to be satisfied that each Rule 23
requirement has been met.”
Teamsters Local 445 Freight Div.
Pension Fund v. Bombardier, Inc., 546 F.3d 196, 204 (2d Cir.
2008) (citation omitted).
The burden of proving compliance with
all of the requirements of Rule 23 rests with the party moving
for certification.
In re IPO, 471 F.3d at 40.
The parties principally dispute whether the plaintiffs have
satisfied the commonality and typicality requirements.
OHR
argues that the appropriate legal standards governing the
plaintiffs’ overtime and minimum wage claims under the NYLL
necessitate individualized, fact-specific inquiries into the
conditions of each home attendant’s employment.
Therefore, OHR
argues, individual questions overwhelm any questions of law and
fact common to the putative class, and the plaintiffs cannot
show that the claims of Severin and Cotova are typical of other
OHR home attendants.
These arguments are addressed to the Rule
23(a) criteria, but arise again in OHR’s arguments that the
plaintiffs have not shown that any common issues will
predominate over those requiring individualized proof or that
11
there is a group-wide injury to be addressed here.
Because,
under the appropriate legal standard for evaluating the
plaintiffs’ NYLL claims, the motion for class certification
clearly fails the criteria set forth in Rule 23(b)(3), it is
unnecessary to address disputes over the Rule 23(a) criteria.
II.
Rule 23(b)(3) Predominance
“As a general matter, the Rule 23(b)(3) predominance
inquiry tests whether proposed classes are sufficiently cohesive
to warrant adjudication by representation.”
476 (citation omitted).
Brown, 609 F.3d at
The predominance requirement’s “purpose
is to ensure that the class will be certified only when it would
achieve economies of time, effort, and expense, and promote
uniformity of decision as to persons similarly situated, without
sacrificing procedural fairness or bringing about other
undesirable results.”
Myers v. Hertz Corp., 624 F.3d 537, 547
(2d Cir. 2010) (citation omitted).
The predominance requirement
is met only “if the plaintiff can establish that the issues in
the class action that are subject to generalized proof, and thus
applicable to the class as a whole, predominate over those
issues that are subject only to individualized proof.”
609 F.3d at 483 (citation omitted).
Brown,
The requirement that the
court conduct a “rigorous analysis” to ensure “actual, not
presumed conformance” with the Rule 23 requirements applies with
12
“equal force to . . . those set forth in Rule 23(b)(3).”
In re
IPO, 471 F.3d at 33 n.3.
A.
Plaintiffs’ NYLL Overtime Claims
Both the FLSA and the NYLL exempt from their coverage
certain employees providing companionship services, but the
“companionship services” exemptions in these statutes are not
coterminous.
The FLSA exempts “any employee employed in
domestic service employment to provide companionship services
for individuals who (because of age or infirmity) are unable to
care for themselves[.]”
29 U.S.C. § 213(a)(15).
“Companionship
services” is defined by regulation to mean
those services which provide fellowship, care, and
protection for a person who, because of advanced age
or physical or mental infirmity, cannot care for his
or her own needs. Such services may include household
work related to the care of the aged or infirm person
such as meal preparation, bed making, washing of
clothes, and other similar services. They may also
include the performance of general household work:
Provided, however, That such work is incidental, i.e.,
does not exceed 20 percent of the total weekly hours
worked.
29 C.F.R. § 552.6 (emphasis added).1
That an employee is
“employed by an employer or agency other than the family or
1
A 1995 Opinion Letter authored by the United States Department
of Labor (“USDOL”) interpreted the regulation’s reference to
“general household work”, finding that
such activities as cleaning the patient's bedroom,
bathroom or kitchen, picking up groceries, medicine,
13
household using their services” does not alter an employee’s
exempt status under the FLSA, provided the employee performs
“companionship services” as defined by regulation.
29 C.F.R.
§ 552.109(a); see also Long Island Care At Home, Ltd. v. Coke,
551 U.S. 158, 162 (2007) (holding regulation “valid and
binding”).
The NYLL’s companionship exemption applies to employees who
“live[] in the home of an employer for the purpose of serving as
a companion to a sick, convalescing or elderly person, and whose
principal duties do not include housekeeping.”
§ 142-2.14.
12 N.Y.C.R.R.
Unlike the FLSA, “sleep-in home attendants employed
by . . . vendor agencies” are not exempt from the NYLL’s
coverage.
Settlement Home Care, Inc. v. Indus. Bd. of Appeals
of the Dep’t of Labor, 151 A.D.2d 580, 581 (2d Dep’t 1989).
OHR’s home attendants are therefore not exempt from the NYLL’s
and dry cleaning would be related to personal care of
the patient and would be the type of household work
that would be exempt work for purpose of section
13(a)(15) of the FLSA. However, activities involving
heavy cleaning such as cleaning refrigerators, ovens,
trash or garbage removal and cleaning the rest of a
“trashy” house would be general household work or
nonexempt work that is subject to the 20 percent time
limitation.
United States Department of Labor, Opinion Letter: Fair Labor
Standards Act, 1995 WL 1032475 (DOL Wage-Hour March 16, 1995).
14
overtime and minimum wage provisions, a point OHR does not
dispute.
The plaintiffs seek to certify a class of home attendants
who worked more than 40 hours per week and whom OHR did not
properly compensate for overtime.
“There are no provisions
governing overtime compensation in” the NYLL.
Ballard v.
Community Home Care Referral Service, 264 A.D.2d 747, 747 (2d
Dep’t 1999).
Overtime requirements under the NYLL are governed
by regulations promulgated by the New York Department of Labor
(“DOL”), see 12 N.Y.C.R.R. §§ 142-2.2, 3.2.2
These regulations
establish two different formulae for calculating overtime pay
depending on whether the employee is or is not subject to an
exemption under the FLSA.
12 N.Y.C.R.R. § 142-3.2 provides:
An employer shall pay an employee for overtime at a
minimum wage rate of one and one-half times the
employee’s regular rate in the manner and methods
provided in and subject to the exemption of sections 7
and 13 of [the FLSA] . . . . In addition, an employer
shall pay employees subject to the exemptions of
section 13 of the [FLSA] . . . overtime at a wage rate
2
12 N.Y.C.R.R § 142-2.1 et seq. applies to employers other than
nonprofit employers that have not exempted themselves from New
York’s minimum wage regulations; 12 N.Y.C.R.R. § 142-3.1 et seq.
applies to such nonprofit employers. OHR is in the latter
category and governed by the latter set of regulations, a point
neither side disputes. The language of the two sets of
regulations is wholly identical for purposes of this motion,
again a point undisputed by the parties. This Opinion will
therefore cite to certain cases interpreting relevant provisions
of 12 N.Y.C.R.R. § 142-2.1 et seq. for assistance interpreting
mirror image provisions of 12 N.Y.C.R.R. § 142-3.1 et seq.
15
of one and one-half times the basic minimum hourly
rate.
12 N.Y.C.R.R. § 142-3.2 (emphasis added).3
Thus, the NYLL
incorporates by reference the FLSA exemptions to determine an
employee’s proper rate of overtime pay under the NYLL.
See
Counsel Opinion Letter, N.Y. Dep’t of Labor, RO-07-0069 Overtime
-- Companions (July 11, 2007), available at
http://labor.ny.gov/legal/counsel-opinion-letters.shtm (“12
NYCRR § 142-2.2 states . . . that all employers shall pay
overtime at a rate of one and one-half times the employee’s
regular rate of pay, unless the employment is covered by one of
the FLSA exemptions, in which case the employer shall pay
overtime at the rate of one and one-half times the minimum
wage.” (emphasis added)).
Consequently, home attendants who fall within the FLSA’s
companionship services exemption are entitled by New York law to
“overtime at a wage rate of one and one-half times the basic
minimum hourly rate.”
12 N.Y.C.R.R. § 142-3.2.
If, however,
the home attendant is not subject to the FLSA’s companionship
exemption, then he or she is entitled under New York law to
overtime pay at time-and-a-half of his or her regular hourly
rate.
Thus, to determine the minimum amount of overtime pay, it
3
For “non-residential employees” like OHR’s home attendants, New
York’s overtime regulation applies to hours worked in excess of
40 per week. Id.
16
is necessary first to determine whether a home attendant is
subject to the FLSA’s companionship services exemption.
The Court has already determined in the context of the
plaintiffs’ motion for FLSA collective action notice that the
question of whether an individual OHR home attendant is subject
to the FLSA companionship services exemption is not susceptible
to generalized, classwide proof.
Rather, the applicability of
the exemption to a particular home attendant is an
individualized, fact-specific determination of whether, as the
Court stated on December 16, the home attendant performed
general household work “more than 20 percent of the time, and of
course any work, household work, that is related to the
fellowship, care or protection of their client wouldn’t negate
the exemption.”
The plaintiff likewise has failed to satisfy “the much
higher threshold” of Rule 23(b)(3)’s predominance requirement.
See Myers, 624 F.3d at 556.
In the context of this putative
class action, the proper rate of overtime for each home
attendant under the NYLL would need to be calculated with
reference to the FLSA companionship services exemption.
It
would be in the interest of each individual class member to
demonstrate that the exemption does not apply to him or her, and
thus establish an entitlement to the higher rate of overtime pay
set forth in 12 N.Y.C.R.R. § 142-3.2.
17
The plaintiff would
obviously prefer a finding that she is not exempt under the FLSA
and is entitled to overtime calculated from her regular hourly
rate rather than the minimum wage.
The predominance of these
individualized, fact-specific questions renders the plaintiffs’
overtime claims ill-suited for classwide resolution.
The plaintiffs argue that whether putative class members
“are exempt under the FLSA is irrelevant, since their FLSA
claims, if any, would be unaffected by the proposed class
action”, and the class claims are limited to proper overtime pay
under the NYLL.
But New York’s overtime pay regulations do not
operate independently from their federal counterparts, as the
plaintiffs would have it.
Whether a home attendant is or is not
subject to the FLSA’s companionship services exemption drives
the calculation of the rate of overtime pay that a home
attendant earns.
B.
Plaintiffs’ NYLL Minimum Wage Claims
The plaintiffs also seek to certify a class of all OHR home
attendants who have worked 24-hour “sleep-in” shifts during the
limitations period.
The plaintiffs allege that OHR’s policy and
practice in paying these employees for 12 hours at their regular
hourly rate plus a flat “per diem” for the remaining 12 hours of
the shift violates New York’s minimum wage law.
18
1. Does the Minimum Hourly Wage Apply to all 24 Hours of a
Sleep-In Shift?
The NYLL requires employers to pay their employees the
minimum wage “for each hour worked”.
NYLL § 652(1).
The
current minimum wage rate, effective July 24, 2009, is $7.25 per
hour.
12 N.Y.C.R.R. § 142-3.1(a)(5).
New York law further
provides:
The minimum wage shall be paid for the time an
employee is permitted to work, or is required to be
available for work at a place prescribed by the
employer . . . . However, a residential employee -one who lives on the premises of the employer -- shall
not be deemed to be permitted to work or required to
be available for work:
(1) during his or her normal sleeping hours solely
because such employee is required to be on call during
such hours; or
(2) at any other time when he or she is free to leave
the place of employment.
12 N.Y.C.R.R. § 142-3.1(b).
A March 11, 2010 DOL Opinion Letter (the “DOL Opinion
Letter”) interprets New York’s minimum wage regulation as it
pertains to “live-in companions”.4
The DOL Opinion Letter
states:
[I]t is the opinion and policy of this Department that
live-in employees must be paid not less than for
thirteen hours per twenty-four hour period provided
that they are afforded at least eight hours of sleep
and actually receive five hours of uninterrupted
4
While the plaintiffs refer to OHR home attendants’ 24-hour
shifts as “sleep-in” shifts in their moving papers, they use the
terms “sleep-in” and “live-in” interchangeably to describe the
shifts in their complaint.
19
sleep, and that they are afforded three hours for
meals. If an aide does not receive five hours of
uninterrupted sleep, the eight-hour sleep exclusion is
not applicable and the employee must be paid for all
eight hours. Similarly, if the aide is not actually
afforded three work-free hours for meals, the threehour meal period exclusion is not applicable.
Counsel Opinion Letter, N.Y. Dep’t of Labor, RO-09-00169 Live-In
Companions (March 11, 2010), available at
http://labor.ny.gov/legal/counsel-opinion-letters.shtm
(interpreting 12 N.Y.C.R.R. § 142-2.1).5
“The [DOL’s] interpretation of a statute it is charged with
enforcing is entitled to deference.
The construction given
statutes and regulations by the agency responsible for their
administration, if not irrational or unreasonable, should be
upheld.”
Samiento v. World Yacht Inc., 10 N.Y.3d 70, 79 (N.Y.
2008) (citation omitted).
An agency’s interpretation of a
regulation is not entitled to deference, however, if it
“conflicts with the plain meaning of the promulgated language.”
Visiting Nurse Service Of New York Home Care v. New York Stated
Dep’t of Health, 5 N.Y.3d 499, 506 (N.Y. 2005).
The DOL’s interpretation of the NYLL’s minimum wage
regulation is entitled to deference and will be upheld and
applied.
The regulation obligates employers to pay non-exempt
5
12 N.Y.C.R.R. § 142-2.1 is identical in all material respects
to 12 N.Y.C.R.R. § 142-3.1, but applies to employers that are
not nonprofit organizations. The plaintiffs do not challenge
the validity of the DOL Opinion Letter as it applies to OHR on
this basis.
20
employees the minimum wage “for the time [employees are]
permitted to work, or [are] required to be available for work at
a place prescribed by the employer[.]”
(emphasis added).
12 N.Y.C.R.R. § 142-3.1
The DOL Opinion Letter, in turn, interprets
what it means to be “available for work at a place prescribed by
the employer” in the context of home health aides working 24hour shifts in the home of a client.
According to the DOL, a
“live-in” home health aide is only “available for work at a
place prescribed by the employer” for thirteen hours of the day,
provided the aide is afforded at least eight hours for sleep and
actually receives five hours of continuous sleep.
The DOL’s interpretation does not conflict with the plain
meaning of the regulatory language.
The phrase “available for
work at a place prescribed by the employer” fairly means more
than merely being physically present at the place prescribed by
the employer.
be surplusage.
Otherwise, the words “available for work” would
The phrase as a whole goes beyond simple
physical location to imply as well a present ability to work,
should the employee be called upon to do so.
The DOL’s
construction of the regulation, finding that a live-in employee
who is afforded at least eight hours of sleep time and actually
attains five hours of continuous sleep lacks any such present
ability to perform work during those hours, does not conflict
with the regulatory language.
21
The DOL’s interpretation is likewise not unreasonable or
irrational.
“Where the interpretation of a statute or its
application involves knowledge and understanding of underlying
operational practices . . . courts regularly defer to the
governmental agency charged with the responsibility for
administration of the statute.”
Kurcsics v. Merchants Mutual
Insur. Co., 49 N.Y.2d 451, 459 (N.Y. 1980).
Applying a general
minimum wage regulation to the specific and unusual employment
context of home health aides working 24-hour live-in shifts is
precisely such an interpretive task.6
The plaintiffs assert that the DOL Opinion Letter should
not be allowed to supply the legal standard for determining
whether OHR’s policies and practices in paying home attendants
working sleep-in shifts violated the NYLL’s minimum wage
provisions.7
First, the plaintiffs argue that the DOL Opinion
6
It also bears noting that the DOL Opinion Letter’s
interpretation of New York’s minimum wage regulation in the
context of employees working 24 hour shifts appears to draw upon
a federal regulation. See 29 C.F.R. § 785.22 (eight hour
sleeping period during 24-hour shift may be excluded, and
interruptions of sleep do not vitiate exclusion unless employee
cannot attain five actual hours of sleep). It is not irrational
or unreasonable for the DOL to conform the New York regulations
with federal regulations and minimize New York employers’
administrative burden in complying with two regimes.
7
Indeed, the plaintiffs’ NYLL minimum wage claim appears to
hinge on the Court not giving effect to the DOL Opinion Letter.
See Plaintiffs’ Second Amended Complaint at ¶ 35 (“At all
relevant times, Defendants had a practice and policy of paying
their employees a flat rate for a full 12-hour night shift,
22
Letter does not apply to OHR home attendants, because the term
“live-in employee” is not defined.
But the DOL Opinion Letter
interprets the NYLL’s minimum wage regulation in the context of
home health aides working 24-hour shifts, and specifically
states that its interpretation applies regardless of whether the
home health aide is a “residential employee” as defined in the
regulation.8
The plaintiffs have failed to identify any
convincing basis to find that the DOL Opinion Letter’s
interpretation does not apply to OHR home attendants working
sleep-in shifts.
The plaintiffs also argue that the DOL Opinion Letter
conflicts with 12 N.Y.C.R.R. § 142-3.1’s plain meaning.
The
plaintiffs do not, however, explain in what way the letter and
regulation are in conflict.
The regulation does not provide
resulting in an hourly rate well below the minimum wage, in
violation of the . . . [NYLL].”).
8
While the DOL Opinion Letter does not explicitly reference it,
a regulation promulgated by the New York State Department of
Health defines “Live-in 24 hour personal care services” as “the
provision of care by one person for a patient who, because of
the patient's medical condition and disabilities, requires some
or total assistance with one or more personal care functions
during the day and night and whose need for assistance during
the night is infrequent or can be predicted.” 18 N.Y.C.R.R.
§ 505.14(a)(5). The definition of “live-in” care provided in
this regulation is consistent with the type of care provided by
OHR home attendants working sleep-in shifts, and undermines the
plaintiffs’ contention that it is ambiguous whether or not the
DOL Opinion Letter applies to them and the putative minimum wage
class.
23
clear guidance on the meaning of the phrase “available for
work”.
The DOL Opinion Letter provides a reasonable
interpretation of the phrase that does not contradict the plain
meaning of the regulation’s language.
While the defendants refer to Visiting Nurse Service to
support this argument, that decision is inapposite.
The court
addressed a different regulation and rejected the interpretation
pressed by a different agency in its brief on appeal.
at 506.9
5 N.Y.3d
Consequently, the decision has little to say about the
weight to be given the DOL Opinion Letter when interpreting the
phrase “available for work”.
12 N.Y.C.R.R. § 142-3.1.10
9
In a related context, the Supreme Court has refused to defer to
the USDOL’s interpretation, advanced for the first time in
appellate briefs, of its own regulations passed pursuant to the
FLSA. Christopher v. SmithKline Beecham Corp., 567 U.S. ---,
--- S.Ct. ---, 2012 WL 2196779, at *8 (June 18, 2012). The
Court noted that deference is not due when “there is reason to
suspect that an agency’s interpretation does not reflect the
agency’s fair and considered judgment on the matter in
question,” for example, “when it appears that the interpretation
is nothing more than a convenient litigating position, or a post
hoc rationalization advanced by an agency seeking to defend past
agency action against attack.” Id. (citation omitted). As in
Christopher, the agency interpretation in Visiting Nurse Service
was apparently advanced for the first time in litigation
involving the meaning of the disputed regulation. By contrast,
the DOL Opinion Letter in this case does not raise the type of
concerns about agency deference identified by the Court in
Christopher.
10
In a May 17 letter, after their class certification motion
became fully submitted, the plaintiffs reference a recent,
unpublished New York State Supreme Court decision touching
briefly upon the DOL Opinion Letter. See Kodirov v. Community
Home Care Referral Serv., Inc., 35 Misc.3d 1221(A), 2012 WL
24
2. Have the Plaintiffs Satisfied Rule 23(b)(3)?
To satisfy Rule 23(b)(3)’s predominance requirement, the
plaintiffs “must at this stage show that more ‘substantial’
aspects of this litigation will be susceptible to generalized
proof for all class members than any individualized issues.”
Myers, 624 F.3d at 551.
The plaintiffs have failed to make this
showing in connection with their minimum wage claims.
The plaintiffs’ NYLL minimum wage claims are premised upon
a flawed reading of the NYLL’s minimum wage provisions, one that
does not consider the interpretive guidance in the DOL Opinion
Letter.
The plaintiffs have proceeded upon a theory that OHR’s
policy of paying home attendants 12 hours at their regular rate
of pay plus a flat per diem violates the NYLL, because home
1605258 (N.Y. Sup. Ct. May 8, 2012). The plaintiffs in Kodirov
are home attendants employed by a different agency defendant,
id. at *1, and their NYLL claims are similar, but not identical,
to those at issue here. Id. at *1-*2. Prior to the plaintiffs
moving for class certification of their NYLL claims, the
defendant moved to dismiss the plaintiffs’ classwide claims, and
the plaintiffs moved to compel classwide discovery. The court
denied the defendants’ motion and granted the plaintiffs limited
classwide discovery, id. at *4, repeatedly characterizing the
defendants’ arguments that the plaintiffs had not satisfied the
criteria for class certification as premature. Id. at *2, *3.
The defendants appear to have raised the DOL Opinion Letter,
which the court characterized as “ambiguous” and “not
conclusively establish[ing] that there is no merit to
Plaintiffs’ claims.” Id. at *1. The court does not otherwise
appear to have given the DOL Opinion Letter sustained analysis.
In light of the brevity of the Kodirov court’s discussion of the
DOL Opinion Letter and the different procedural posture it
faced, the Court is not inclined to give the Kodirov court’s
limited comments about the DOL Opinion Letter persuasive weight.
25
attendants are entitled to be paid at least the minimum wage for
each of the shift’s 24 hours.
With respect to their class
allegations, the plaintiffs allege that every OHR home attendant
who worked sleep-in shifts was underpaid in the same manner.
The plaintiffs do not argue that OHR’s compensation policy for
sleep-in home attendants violates the NYLL’s minimum wage
provision if the regulation is read in light of the DOL Opinion
Letter and its exclusion of hours was properly applied.
Because the DOL Opinion Letter does govern interpretation
of the NYLL’s minimum wage provisions, the plaintiffs must show
that OHR improperly excluded time from 24-hour sleep-in shifts
to establish an NYLL minimum wage violation.
OHR asserts that
it complied with its obligations under the NYLL’s minimum wage
provisions through a policy that sleep-in home attendants were
entitled to at least eight hours of sleep time and at least five
hours of continuous sleep during a 24-hour shift.
OHR has
presented evidence that this was OHR’s policy, that the policy
was communicated to newly-hired home attendants at orientation
and to all home attendants at twice-yearly training sessions,
and that OHR’s home attendants were also told to report
immediately to OHR any changes in client condition that
prevented sleep-in home attendants from receiving at least eight
hours of sleep time and five hours of continuous sleep.
The
plaintiffs have not presented evidence from Severin, Cotova, or
26
any other OHR home attendant that OHR did not inform them that
they were entitled to receive at least eight hours of sleep time
and five hours of continuous sleep.
Individual plaintiffs may still establish an NYLL violation
by showing that they did not in fact receive eight hours of
sleep time or five hours of continuous sleep while working
sleep-in shifts.
But that is a different theory of liability
than the one heretofore pursued by the plaintiffs, and they have
not demonstrated that it is susceptible to classwide resolution.
Whether or not a home attendant actually received eight hours of
sleep time and five hours of continuous sleep is an inherently
fact-specific inquiry that is likely to hinge heavily on the
characteristics of particular clients to whom sleep-in home
attendants were assigned.
Severin and Cotova have both
testified that on numerous occasions while working sleep-in
shifts they were unable to sleep through the night, because they
were constantly forced to attend to clients’ physical and mental
impairments.
Resolving the plaintiffs’ minimum wage claims will
require, at a minimum, establishing the truth or falsity of a
plaintiff’s sleep deprivation contentions, the frequency with
which the issue arose for a plaintiff, whether the plaintiff
reported the problem to OHR, and OHR’s response.
Answering
these questions is unlikely to “generate common answers apt to
drive the resolution of” class litigation, or “resolve . . .
27
issue[s] that [are] central to the validity of each one of the
[class] claims in one stroke.”
Wal-Mart, 131 S. Ct. at 2551.
Because the plaintiffs have failed to show that common questions
of law or fact predominate over individual ones as to their NYLL
minimum wage claim, class certification of this claim must be
denied as well.
The plaintiffs raise several additional arguments that
common questions of law and fact render their NYLL minimum wage
claims susceptible to classwide resolution.
First, the
plaintiffs argue that it was OHR’s common policy and practice
not to allow sleep-in home attendants to take the three workfree hours for meals during a 24-hour shift as discussed in the
DOL Opinion Letter.
As evidence of this violation, plaintiffs
point to OHR’s Home Attendant Handbook, which states that home
attendants working sleep-in shifts do not have “duty free
hours”.
But the Home Attendant Handbook describes a “duty free
hour” as one in which the home attendant may leave the client’s
home, and the DOL Opinion Letter does not state that it is
necessary that a home attendant be allowed to leave the premises
for a meal hour to be considered “work-free”.
It does not
follow from the fact that OHR home attendants on sleep-in shifts
are not allowed a “duty-free hour” that it is OHR’s policy not
to allow them three work-free hours for meals during the 24-hour
shift.
28
More importantly, even if OHR did not permit its employees
three work-free hours for meals, that practice would not
constitute a violation of the NYLL’s minimum wage provisions.
The DOL Opinion Letter treats the eight-hour sleep period
exclusion and the three-hour meal period exclusion as separate
and distinct for purposes of calculating an employee’s hours
worked in a 24-hour shift.11
OHR home attendants are presently
paid $136.95 for a weekday sleep-in shift.
Even if the eight-
hour sleep period exclusion is the only exclusion applied, and a
home attendant is found to have worked 16 compensable hours, OHR
compensates home attendants at a rate of approximately $8.55 per
hour.
That is greater than New York’s current $7.25 per hour
minimum wage.
The plaintiffs next argue that the actual amounts of sleep
attained by individual home attendants working sleep-in shifts
cannot be proven on a classwide basis because OHR has breached
its statutory duty “to keep accurate records” of hours worked
and wages paid.
See NYLL § 196-a.
In essence, the plaintiffs
seek to transform their minimum wage claims.
Rather than
alleging that the manner in which OHR compensated all home
attendants working sleep-in shifts violated the NYLL’s minimum
11
“Similarly, if the aide is not actually afforded three workfree hours for meals, the three-hour meal period exclusion is
not applicable.” March 11, 2010 DOL Opinion Letter (emphasis
added).
29
wage provisions, the plaintiffs contend that OHR’s recordkeeping practices violate the NYLL and the burden should shift
to OHR to prove it paid all sleep-in home attendants the minimum
wage on a classwide basis.
The plaintiffs have not heretofore
challenged the adequacy of OHR’s record-keeping.
Indeed, in
their initial moving papers the plaintiffs asserted that OHR’s
detailed personnel records provided substantial common proof for
their classwide minimum wage allegations.
It is too late for
the plaintiffs to alter their minimum wage allegations and seek
to certify a class on a theory at which their complaint did not
hint.
Finally, the plaintiffs argue that common proof is
available with respect to the type of clients requiring sleep-in
care.
The plaintiffs have not suggested how general criteria
applied by HRA to assess a patient’s appropriate level of care
would supply “common answers” to the critical issue of whether
individual sleep-in home attendants received eight hours of
sleep time during shifts and actually attained five hours of
continuous sleep.
30
CONCLUSION
The plaintiffs' March 30 motion for class certificat
their NYLL claims is
SO ORDERED:
Dated:
New York, New York
June 20, 2012
D NISE COTE
United States District Judge
31
of
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