CLARK v. IMPACT HOME CARE SERVICES INC.
Filing
37
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 3/30/2018 granting 16 Motion to Certify Class as set out herein. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DOROTHY CLARK, Individually
and on behalf of all others
similarly situated,
Plaintiff,
v.
LASHONDA S. WILLIAMSON d/b/a
Impact Home Care Services,
Defendant.
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1:16cv1413
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This is a proposed collective action under the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”).
Before the court
is Plaintiff Dorothy Clark’s motion for conditional certification
of an FLSA collective and approval of notice.
(Doc. 16.)
This
motion has been briefed and is ripe for consideration.
(Docs. 17,
31,
motion
32.)
For
the
reasons
set
forth
below,
the
to
conditionally certify the collective action will be granted, and
the motion for approval of notice will be granted in part and
denied in part.
I.
BACKGROUND
On December 16, 2016, Clark brought this action on behalf of
herself and others similarly situated, alleging that Defendant
LaShonda
S.
Williamson
d/b/a
Impact
Home
Care
Services
(“Williamson”)
misclassified
home
healthcare
workers
as
independent contractors and seeking to recover unpaid overtime
(Doc. 1; Doc. 13.) 1
under the FLSA.
On March 7, 2017, Clark
subsequently moved to conditionally certify this matter as a
collective action under the FLSA and approve notice to potential
class members.
(Doc. 16.)
Clark defines the class, or collective
under the FLSA, to be certified as:
All current and former home healthcare workers (personal
care aides, certified nursing assistants and in-home
aides) who worked for LaShonda Swindell Williamson d/b/a
Impact Home Care Services at any time since January 1,
2015 and who were classified as an independent
contractor and who were not paid time and a half for all
hours worked over 40 in a work week.
(Doc. 16-1 at 2.)
Williamson operates an unincorporated business named Impact
Home Care Services, which is a North Carolina-based home care
agency that provides personal care services and assistance with
home management tasks to elderly, ill, and disabled clients. (Doc.
26 ¶ 9; Doc. 16-2 at 2-3.)
Williamson offers personal care
assistance 24 hours a day, 7 days a week, with services provided
by home healthcare workers under the direct supervision of a
registered nurse.
(Doc. 16-2 at 2; Doc. 16-3 at 2.)
In order to
meet the needs of her clients, Williamson provides at least some
1
Clark originally brought this action against Impact Home Care Services,
Inc. (Doc. 1) but subsequently filed an amended complaint on March 1,
2017, substituting Defendant “LaShonda S. Williamson d/b/a Impact Home
Care Services” in the place of “Impact Home Care Services, Inc.,” (Doc.
13).
2
of these home healthcare services to her clients through a “network
of independent contractors.”
(Doc. 26 ¶ 75; see id. Ex. 1.)
On
April 7, 2015, Clark entered into an agreement to work as an
independent contractor to provide in-home companionship and care
for Williamson’s clients.
(Doc. 27 ¶ 7; Doc. 26, Ex. 1; Doc. 16-
4 ¶¶ 4-6.)
Clark claims that Williamson “attempted to circumvent the
FLSA
by
misclassifying
[her]
independent contractors.”
home
healthcare
(Doc. 16-1 at 9.)
workers
as
In her declaration
submitted in conjunction with this motion, Clark alleges that “all
home healthcare workers were subject to this company-wide policy
of classifying home healthcare workers as independent contractors
and not paying them overtime wages.”
(Doc. 16-4 ¶ 25.)
Based on
her discussions with other home healthcare workers, Clark claims
that all home healthcare workers shared the same or similar job
description,
performed
the
same
or
similar
and
were
(Id. ¶¶ 7-9, 25.)
classified as independent contractors.
duties,
She
further alleges that all such workers were required to fulfil the
responsibilities
outlined
in
plans
of
care
prepared
by
the
Defendant and lacked any independent discretion as to how their
duties were performed.
(Doc. 16-4 ¶¶ 10-14.)
She claims that
registered nurses monitored the completion of such care plans and
that all supervisors were directly employed by the Defendant.
(Doc. 16-1 at 5-6; see Doc. 16-3 at 2.)
3
She asserts that all home
healthcare employees were required to wear company badges and
instructed to adhere to a dress code by their supervisors.
(Doc.
16-4 ¶¶ 19-20; Doc. 16-11 at 2.)
Clark
alleges
that
she
worked
for
Williamson
as
a
home
healthcare worker or certified nursing assistant from early 2015
until approximately October 2016.
at 2.)
(Doc. 16-4 ¶¶ 2-3; Doc. 16-10
She claims that she regularly worked over forty hours per
week but was never paid overtime wages in excess of her $11.00
hourly rate.
(Doc. 16-4 ¶¶ 18, 21-22; see Doc. 13 ¶¶ 37-38.)
She
has provided time sheets and pay stubs that indicate she worked in
excess of ninety hours per week on some occasions without being
paid overtime wages.
(Doc. 16-5 (pay stubs indicating weekly
compensation for work totaling 92.75 hours, 92.0 hours, 89.75
hours, and 89.25 hours at a rate equal to $11.00 per hour); Doc.
16-6 at 2; Doc. 16-7 at 2 (time sheet indicating a weekly total
91.5 hours).)
Based on her discussions with other home healthcare
workers, knowledge of their work schedules, and conversations with
her supervisors, Clark contends that other home healthcare workers
worked over forty hours per week since January 1, 2015, and were
not paid overtime wages.
II.
(Doc. 16-4 ¶¶ 23-24; see Doc. 13 ¶ 37.)
ANALYSIS
A.
Motion for Conditional Certification
The FLSA requires covered employers to pay their employees
overtime pay at one and one-half times the employee’s normal hourly
4
rate for hours worked in excess of forty during a work week.
U.S.C. § 207.
29
However, the act contains various exemptions from
its wage and hour requirements.
See id. § 213.
The “companionship
services exemption” 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 . . . .”
Id. § 213(a)(15).
In October 2013, the U.S. Department of Labor amended its
regulations to preclude third-party employers and agencies from
claiming the companionship services exemption.
See Application of
the Fair Labor Standards Act to Domestic Service, 78 Fed. Reg.
60,454 (Oct. 1, 2013).
The amended regulations, which became
effective
2015, 2
on
January
1,
extended
the
overtime
payment
provisions to home healthcare workers employed by third parties or
agencies.
29 C.F.R. § 552.109(a); see Guerrero v. Moral Home
Servs., Inc., 247 F. Supp. 3d 1288, 1290 (S.D. Fla. 2017) (noting
“[t]he amended regulations preclude third-party employers—like
2
The parties have not raised the issue of the effective date of the
regulation in their briefs. The majority of courts appear to have found
January 1, 2015, to be the effective date of the regulation. Mayhew v.
Loved Ones in Home Care, LLC, No. 2:17-CV-03844, 2017 WL 5983153, at *6
(S.D.W. Va. Dec. 1, 2017) (noting split among district courts regarding
the effective date of the amended regulations, but holding that “[t]he
court finds persuasive the ‘overwhelming majority of well-reasoned
opinions’ endorsing the [January 1, 2015] date” (quoting Hypolite v.
Health Care Servs. of New York Inc., No. 16-CV-04922, 2017 WL 2712947,
at *4 (S.D.N.Y. June 23, 2017)); Guerrero v. Moral Home Servs., Inc.,
247 F. Supp. 3d 1288, 1292 (S.D. Fla. 2017) (same).
5
[defendant’s
home
healthcare
agency]—from
claiming
the
companionship services exemption”).
For any violation of the FLSA, an employee may bring a
collective
action
on
similarly situated.”
litigation,
each
behalf
of
herself
29 U.S.C. § 216(b).
“similarly
situated”
written consent with the court.
Id.
or
“other
employees
To become part of the
employee
must
file
her
Employees are “similarly
situated” when they “raise a similar legal issue as to coverage,
exemption, or nonpayment o[f] minimum wages or overtime arising
from at least a manageably similar factual setting with respect to
their job requirements and pay provisions.”
Solais v. Vesuvio's
II Pizza & Grill, Inc., 1:15CV227, 2016 WL 1057038, at *5 (M.D.N.C.
Mar. 14, 2016) (quoting McLaurin v. Prestage Foods, Inc., 271
F.R.D. 465, 469 (E.D.N.C. 2010)) (alteration in original).
FLSA class certification takes place in two stages.
Hollis
v. Alston Pers. Care Servs., LLC, No. 1:16CV1447, 2017 WL 3327591,
at *2 (M.D.N.C. Aug. 3, 2017) (citing Solais, 2016 WL 1057038, at
*5). 3
The
first
certification,
stage
during
–
which
applicable
here
the
determines
3
court
-
is
conditional
whether
the
“The second stage, known as decertification, only occurs if a defendant,
usually after discovery is virtually complete, moves to decertify a
conditionally certified class.” Hollis, 2017 WL 3327591, at *2 (quoting
Solais, 2016 WL 1057038, at *6 n.7). It is at this second stage, where
a deeper inquiry into the merits is conducted, similar to a Rule 23
certification. See Solais, 2016 WL 1057038, at *6 n.7 (noting “courts
apply a heightened fact specific standard to the ‘similarly situated’
analysis” (citation omitted)). This second stage is not at issue here.
6
employees’ claims are similar enough to merit the distribution of
court-approved notice to possible class members.
Id.; see also
Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)
(“[D]istrict courts have discretion, in appropriate cases, to
implement
[§ 216(b)]
plaintiffs.”).
by
facilitating
notice
to
potential
At this stage, “[c]ollective action plaintiffs are
not bound by Rule 23's requirements of numerosity, commonality,
typicality and adequacy; they need only demonstrate that they are
‘similarly situated’ to proceed as a class.”
Robinson v. Empire
Equity Grp., Inc., No. WDQ-09-1603, 2009 WL 4018560, at *1 n.8 (D.
Md. Nov. 18, 2009) (citing Mancia v. Mayflower Textile Servs.
Co., No. CCB–08–273, 2008 WL 4735344, at *2 (D. Md. Oct. 14,
2008)); Solais, 2016 WL 1057038, at *5 n.6.
Conditional certification is appropriate when it would serve
judicial efficiency, Hoffmann-La Roche, 493 U.S. at 170, and the
court must be mindful that granting conditional certification
expands the scope of the litigation and begins a process of classwide discovery, see, e.g., D'Anna v. M/A-COM, Inc., 903 F. Supp.
889, 894 (D. Md. 1995). The standard for conditional certification
is “fairly lenient,” but it is not a “rubber-stamp approach.”
Adams v. Citicorp Credit Servs., Inc., 93 F. Supp. 3d 441, 453
(M.D.N.C. 2015) (citation omitted).
While parties generally “have
minimal evidence at this point in the proceedings[,] . . . [m]ere
allegations will not suffice; some factual evidence is necessary.”
7
Id.
(citations
omitted).
The
plaintiff
must
only
make
“a
relatively modest factual showing that a common policy, scheme or
plan that violated the law exists.”
Hollis v. Alston Pers. Care
Servs., LLC, No. 1:16CV1447, 2017 WL 3327591, at *3 (M.D.N.C. Aug.
3, 2017) (quoting Adams, 93 F. Supp. 3d at 453).
At this stage,
“the Court does not resolve factual disputes, decide substantive
issues on the merits, or make credibility determinations.” Solais,
2016 WL 1057038, at *6 (quoting Adams, 93 F. Supp. 3d at 454).
Williamson first contends that Clark has failed to allege any
violation occurring as a result of a policy or custom. (Doc. 31 at
3-4.)
In particular, Williamson notes that Clark provides no
information regarding the potential size of the class she wishes
to be certified.
(Id.) 4
Williamson further contends that Clark
relies primarily on hearsay statements from other employees, which
may not be considered by the court in connection with a § 216(b)
motion.
(Id. at 4 (citing Harrison v. McDonald’s Corp., 411 F.
Supp. 2d 862, 865 (S.D. Ohio 2005)).
Clark contends that she has satisfied her “lenient burden” by
4
Williamson similarly argues that Clark has failed to allege sufficient
numerosity to support creating a collective class.
(Doc. 31 at 4.)
Williamson relies on the fact that FLSA claims are generally subject to
a two-year statute of limitations and the number of similarly-situated
employees may be limited in this instance. (Doc. 31 at 4.) However,
as Clark correctly notes (Doc. 32 at 3), conditional certification under
the FLSA is not subject to a numerosity requirement. Robinson, 2009 WL
4018560, at *1 n.8. Furthermore, as discussed later in this opinion,
the court will apply a three-year statute of limitations for purposes
of conditionally certifying the proposed class. See infra n.6.
8
identifying a specific payroll practice that allegedly violates
the FLSA and applies to all home healthcare workers employed by
the Defendant.
(Doc. 32 at 1-3.)
She claims that her declaration
and supporting documentation establish that these home healthcare
workers
are
similarly
certification.
(Id.)
situated
for
purposes
of
conditional
She further argues that courts may consider
the hearsay statements within her declaration at this stage in the
proceedings.
(Id. at 3-7.)
Contrary to Williamson’s claim, “courts in the Fourth Circuit
that have addressed the issue have held that hearsay evidence . . .
supporting
a
motion
for
conditional
certification
considered so long as it is based on personal knowledge.”
may
be
Hollis,
2017 WL 3327591, at *2 (quoting McCoy v. RP, Inc., C.A. No. 2:14–
CV–3171–PMD, 2015 WL 6157306, at *3 (D.S.C. Oct. 19, 2015)). Here,
Clark’s declaration includes facts that constitute hearsay.
(Doc.
16-4 ¶ 7 (“I know, from talking to other home healthcare workers,
that Impact classified its home healthcare workers as independent
contractors.”), ¶ 16 (relying in part on statements from other
home healthcare workers), ¶ 23 (same)).
The court finds that it
may consider such evidence that may be otherwise considered hearsay
because Clark’s source of the relevant information is her own
personal knowledge of the alleged statements of other employees.
See Hollis, 2017 WL 3327591, at *2.
As
to
the
merits
of
Clark’s
9
motion
for
conditional
certification, Clark has sufficiently alleged that she and other
home healthcare workers have been denied overtime pay pursuant to
a common policy of misclassifying home healthcare workers as
independent
contractors
to
support
conditional
certification.
Clark has submitted a declaration in which she states that she and
other
home
healthcare
nurses
held
similar
positions,
were
uniformly classified as independent contractors, and were required
to follow the directives in the assigned plans of care and company
policies with no independent discretion as to how they performed
their duties.
(Doc. 16-4 ¶¶ 7-15, 25.)
She further alleges that
she and other home healthcare workers routinely worked over 40
hours per week and were not compensated for overtime.
¶¶ 18, 21-25.)
(Doc. 16-4
Apart from challenging Clark’s failure to quantify
the number of potential class members, Williamson does not directly
dispute Clark’s allegations that home healthcare workers were
uniformly classified as independent contractors or subject to
similar policies and responsibilities.
(See Doc. 31 at 3-5.)
Any
claim that Clark failed to allege a sufficient number of similarlysituated
workers
is
further
undermined
by
Williamson’s
own
admission within her counterclaim that she relies on a “network of
independent contractors,” including home healthcare workers like
Clark, to meet the needs of her patients.
(Doc. 26 ¶¶ 75-76.)
The court finds that conditional certification is appropriate
because Clark has satisfied the lenient standard that she and other
10
potential opt-in plaintiffs were victims of a common policy or
plan.
See Ferebee v. Excel Staffing Serv., Inc., No. 2:16-CV-8-
BO, 2017 WL 1416533, at *3 (E.D.N.C. Apr. 19, 2017) (“[T]he Court
is persuaded by the authority from this circuit which has found
that workers who have been allegedly misclassified as independent
contractors pursuant to a uniform policy are similarly situated
for the purposes of this initial stage of inquiry.” (collecting
cases)); Houston v. URS Corp., 591 F. Supp. 2d 827, 834 (E.D. Va.
2008)
(holding
that
“Plaintiffs
have
sufficiently
alleged
a
‘common policy or plan’ in that all inspectors were classified as
independent
contractors
rather
than
employees”
to
support
conditional class certification) (citing Lee v. ABC Carpet & Home,
236 F.R.D. 193, 198 (S.D.N.Y. 2006)). 5
5
As one district court within this circuit recently noted, a conditional
class certification in a misclassification case “presents something of
an anomaly in applying the two-step certification procedure.” Rosinbaum
v. Flowers Foods, Inc., 238 F. Supp. 3d 738, 744 (E.D.N.C. 2017). Courts
are divided as to whether the consideration of the plaintiff’s FLSA
status is appropriate at the notice stage of the proceedings. Compare
McCurley v. Flowers Foods, Inc., No. 5:16-CV-00194-JMC, 2016 WL 6155740,
at *5 n.5 (D.S.C. Oct. 24, 2016) (finding the consideration of whether
proposed class members may qualify as employees was inappropriate at the
notice stage of the proceedings in misclassification case), with
Rosinbaum, 238 F. Supp. 3d at 744 (approving conditional class
certification in misclassification case after finding that plaintiffs
made “a showing of substantial evidence that members of the proposed
class may qualify as employees under the FLSA”). While Williamson has
denied that Clark or any other similarly-situated persons were employees
entitled to overtime pay under the FLSA (Doc. 26 ¶¶ 9, 23, 38), she does
not challenge the conditional certification based on these grounds. To
the extent that any threshold showing is required at this stage in the
proceedings, the court finds that Clark has presented sufficient evidence
to demonstrate that the members of the proposed class may qualify as
employees under the FLSA.
In her declaration, Clark set forth
substantial evidence that Williamson exerted strict control over the
11
Therefore,
the
court
conditionally
certifies
the
FLSA
collective proposed by Clark and defines the class as follows:
All current and former home healthcare workers (personal
care aides, certified nursing assistants and in-home
aides) who worked for LaShonda Swindell Williamson d/b/a
Impact Home Care Services at any time since January 1,
2015 and who were classified as an independent
contractor and who were not paid time and a half for all
hours worked over 40 in a work week. 6
activities of the proposed class members such that they may qualify as
employees under the FLSA.
See Rosinbaum, 238 F. Supp. 3d at 744-45
(finding that allegations made in plaintiffs’ declarations regarding the
defendant’s control over plaintiffs’ workflow and duties was sufficient
to support conditional class certification (citing Schultz v. Capital
Intern. Sec., Inc., 466 F.3d 298, 304 (4th Cir. 2006))).
6
Under the FLSA, the statute of limitations is two years, which may be
extended to three years where the defendant willfully violated the act.
29 U.S.C. § 255(a). The statute of limitations continues to run as to
each employee until that employee commences an action or opts in. Id.
§§ 255(a), 256. Given that Clark alleges willful violations of the FLSA
in her complaint (Doc. 13 ¶ 58), the court finds that the three-year
statute of limitations should apply for purposes of conditional
certification. See Valerio v. RNC Indus., LLC, 314 F.R.D. 61, 73–74
(E.D.N.Y. 2016) (“At the conditional certification stage, allegations
of willful conduct are sufficient to apply the three-year statute of
limitations for purposes of certifying the class.” (quoting Jie Zhang
v. Wen Mei, Inc., No. 14–CV–1647, 2015 WL 6442545, at *5 (E.D.N.Y. Oct.
23, 2015)). Accordingly, notice should generally be directed to those
employed within three years of the date of the mailing of the notice.
See 29 U.S.C. § 255; Winfield v. Citibank, N.A., 843 F. Supp. 2d 397,
410 (S.D.N.Y. 2012). However, the court finds it appropriate to direct
notices to all home healthcare workers employed at any time since January
1, 2015, without prejudice to the Defendant’s right to challenge the
timeliness of individual Plaintiffs’ claims in the future. See Winfield,
843 F. Supp. 2d at 410 (“[B]ecause equitable tolling issues often arise
for prospective plaintiffs, courts frequently permit notice to be keyed
to the three-year period prior to the filing of the complaint, ‘with the
understanding that challenges to the timeliness of individual
plaintiffs' actions will be entertained at a later date.’” (quoting
Whitehorn v. Wolfgang's Steakhouse, Inc., 767 F. Supp. 2d 445, 451
(S.D.N.Y. 2011)); Houston, 591 F. Supp. 2d at 835 (“[J]udicial economy
is served by conditionally certifying and providing notice to a larger
rather than a small class.”).
12
B.
Notice to Potential Class Members
Clark requests that the court order Williamson to produce
identifying information regarding the putative class members and
authorize certain forms of notice to collective members.
16-1
at
20-21.)
Clark
requests
an
expedited
(Doc.
production
of
identifying information to facilitate notice and has proposed a
set of deadlines for the production of such information and notice
to collective members. (Id. at 18.) Williamson argues that courtsupervised notice is not warranted because Clark “speaks freely
with the other employees of the Defendant,” as evidenced by her
declaration, and that all home healthcare workers are registered
with the North Carolina Department of Health and Human Services.
(Doc. 31 at 5.)
However, Williamson does not raise any specific
objection to the content of the proposed notices, the type of
proposed notice, or the information regarding members of the
collected class requested by Clark.
Clark
contends
that
Williamson’s
arguments
ignore
“the
remedial nature of the Act which promotes early participation in
the litigation to protect workers’ claims and avoid duplicative
litigation.”
(Doc. 32 at 7.)
Clark claims that home healthcare
workers often live paycheck to paycheck and contact information
“often change[s] due [to] an inability to pay rent and phone bills
if work is interrupted.”
(Doc. 16-1 at 11.)
13
Clark further notes
that the requested information is “routinely ordered to be produced
in FLSA collective actions.”
(Doc. 32 at 7-8 (collecting cases).)
“The FLSA ‘manifests a preference that when collective action
certification is granted, a court-controlled notice be provided to
potential putative plaintiffs, rather than permitting unregulated
solicitation
efforts
to
secure
joinder
by
those
individuals.’”
Adams, 93 F. Supp. 3d at 456 (quoting Colozzi v.
St. Joseph's Hosp. Health Ctr., 595 F. Supp. 2d 200, 210 (N.D.N.Y.
2009)).
Accordingly, the court has a “managerial responsibility
to oversee the joinder of additional parties to assure that the
task is accomplished in an efficient and proper way.”
Hoffmann–La Roche, 493 U.S. at 170–71)).
Id. (quoting
Time is of the essence
for putative class members to join the litigation because the
statute of limitations continues to run until opt-in plaintiffs
file their written consent.
See 29 U.S.C. §§ 255, 256.
Given the limited information available to the Clark and the
time constraints for potential class members to opt-in to the
litigation,
the
court
finds
appropriate in this instance.
that
court-supervised
notice
is
See Adams, 93 F. Supp. 3d at 456;
Velasquez-Monterrosa v. Mi Casita Restaurants, No. 5:14-CV-448BO, 2016 WL 1703351, at *3 (E.D.N.C. Apr. 27, 2016).
Subject to
the limitations outlined below, the court finds Clark’s requested
relief appropriate.
14
1.
Discovery of Identifying Information
In order to facilitate notice, Clark requests that the court
order Williamson to provide names, last known home addresses, email
address, telephone numbers, and any employee number or unique
identifier of the collective members in an electronic format within
seven days of the entry of the court’s order.
12.)
(Doc. 16-1 at 11-
For anyone whose notice is returned undeliverable, Clark
requests that Williamson provide the individual’s date of birth,
last
four
digits
of
his
or
her
social
security
number,
and
telephone number (if not initially provided) in an electronic
format for the purpose of locating a current address.
13.)
(Id. at 12-
Finally, Clark requests permission to call any individual
whose notice is returned undeliverable, solely for the purpose of
obtaining a current address for re-mailing the notice.
13.)
(Id. at
Williamson has not addressed these specific requests.
Courts
have
discretion
to
permit
limited
facilitate notice in FLSA collective actions.
at 201 (collecting cases).
discovery
to
See Lee, 236 F.R.D.
While courts have routinely approved
requests for home addresses and email addresses, courts have been
more
reluctant
to
authorize
the
disclosure
of
other
private
information, such as dates of birth, social security numbers, and
telephone numbers.
See e.g., Hart v. Barbeque Integrated, Inc.,
No. 2:17-CV-227-PMD, 2017 WL 4812591, at *7 (D.S.C. Oct. 25, 2017)
(“Although email addresses are more routinely disclosed, district
15
courts in this circuit have required a showing of a ‘special need’
before requiring the disclosure of telephone numbers.”); Byard v.
Verizon W. Virginia, Inc., 287 F.R.D. 365, 376 (N.D.W. Va. 2012)
(“This
Court
has
previously
held
that
the
plaintiffs
must
establish[] a need for this type of information before it may be
turned over.” (internal quotations and citation omitted)); Valerio
v. RNC Indus., LLC, 314 F.R.D. 61, 75 (E.D.N.Y. 2016) (“Courts are
reluctant,
however,
to
authorize
disclosure
of
private
information, such as dates of birth and social security numbers in
the first instance and without a showing that the information is
necessary for the plaintiff to notify potential opt-ins of the
collective action.” (collecting cases)). 7
Accordingly, the court directs Williamson to produce to Clark
7
In the subsequently decided authority Clark provided for the court’s
consideration (Docs. 21, 33), district courts were divided over whether
it was appropriate to produce such information under factually similar
circumstances. Compare Adams v. United Cerebral Palsy of Cent. Arkansas,
Inc., No. 4:16CV00930 JLH, 2017 WL 5659822, at *2 (E.D. Ark. Apr. 27,
2017) (granting request for names, addresses and email addresses of
potential class members comprised of home healthcare workers, but denying
request to provide dates of birth, telephone numbers, and partial social
security numbers of anyone whose notice is returned as undeliverable);
Evans v. Caregivers, Inc., No. 3:17-CV-0402, 2017 WL 2212977, at *7 (M.D.
Tenn. May 19, 2017) (approving request for the names, last known mailing
addresses, and email addresses of putative class members comprised of
home healthcare workers, but denying request that defendant provide
additional identifying information, including telephone numbers, even
where defendant failed to file a response to plaintiff’s motion), with
Mayfield-Dillard v. Direct Home Health Care, Inc., No. CV 16-3489
(RHK/TNL), 2017 WL 945087, at *3 (D. Minn. Mar. 10, 2017) (granting
request for dates of birth, telephone numbers, and partial social
security numbers of putative class members whose notice is returned as
undeliverable, noting that “[t]his type of information is routinely
produced in FLSA cases”).
16
the names, last known home addresses, email addresses, and employee
number or unique identifier of the putative class members.
See
Michael v. Bloomberg L.P., No. 14-CV-2657 TPG, 2015 WL 1810157, at
*4 (S.D.N.Y. Apr. 17, 2015) (directing defendant to produce names,
dates of employment, last known addresses, employee numbers, and
email addresses of all potential plaintiffs in FLSA collective
action).
However,
the
court
denies
Clark’s
motion
for
the
production of telephone numbers for all collective members in the
first instance.
See Houston, 591 F. Supp. 2d at 836 & n.9 (denying
initial request for telephone numbers of putative class members,
but
authorizing
plaintiff
to
obtain
telephone
numbers
for
individuals whose notice is returned undeliverable).
While the court is mindful of the privacy concerns of the
potential plaintiffs, the court finds that the disclosure of
telephone numbers, dates of birth, and partial social security
numbers is appropriate in this case, but only for those members
whose initial notice is returned undeliverable and only if it is
used solely for the purpose of locating the individual’s current
address.
Here,
Clark
contends
that
the
production
of
such
information is warranted because the contact information of the
putative class members may often change due to their socio-economic
status.
(Doc. 16-1 at 11.)
In addition, Williamson has not
specifically objected to the production of such information.
The
production of such information is particularly warranted in this
17
case where time is of the essence in reaching potential opt-in
plaintiffs.
Therefore, the court grants Clark’s request for
Williamson to produce telephone numbers, dates of birth, and
partial social security numbers for any individual whose notice is
returned undeliverable, provided that such information be used for
the limited purpose of locating the current address of those
individuals.
See Houston, 591 F. Supp. 2d at 836 & n.9; Byard,
287 F.R.D. at 376 (recognizing the “substantial privacy concerns”
associated
partial
with
social
disclosure
of
the
disclosure
security
such
of
numbers,
information
collective
but
for
class
approving
individuals
members’
the
limited
whose
initial
notice was returned undeliverable).
To protect the privacy interests of the potential class
members,
the
confidentiality
court
over
will
the
order
that
putative
the
class
parties
members’
maintain
contact
information, requiring that Williamson produce such information to
Plaintiff’s counsel only and that Plaintiff’s counsel only use
such information in connection with this litigation as permitted
in this memorandum order and opinion.
Plaintiff’s counsel shall
not disclose any of the personal information obtained to Plaintiff.
See, e.g., Earl v. Norfolk State Univ., No. 2:13CV148, 2014 WL
6608769, at *8 (E.D. Va. Nov. 18, 2014); Russell v. Illinois Bell
Tel. Co., 575 F. Supp. 2d 930, 939-40 (N.D. Ill. 2008).
18
2.
Form of Notice to Potential Class Members
Clark requests that the court authorize the following forms
of notice: (1) initial notice by mail to the collective members’
last known addresses, with permission to re-mail the notice if it
is
returned
undeliverable;
(2)
initial
notice
by
email
to
collective members for whom Williamson can provide personal email
addresses; (3) reminder postcard to collective members who have
not responded after the mailing of the initial notice, which would
be sent thirty days prior to the expiration date of the opt-in
period; (4) scripted reminder calls, following the language of the
proposed postcard, made shortly before the end of the opt-in period
to collective members who have not responded after the initial
mailing of the notice.
(Doc. 16-1 at 14, 20-21.)
Clark has
attached proposed forms of notice to her motion for the court’s
consideration.
(Doc.
16-12
(proposed
mailing);
Doc.
16-13
(proposed email); Doc. 16-14 (proposed reminder postcard)).
Clark
also requests that the court authorize the proposed notice and
reminder postcard to be translated to Spanish for distribution in
Spanish and English to collective members with Hispanic surnames.
(Doc. 16-1 at 14.)
In addition, Clark requests that the court
order Williamson to post the notice on the employee notice board
or alternatively in a prominent location in the employer’s offices
where collective members can see it within fourteen days of the
entry of the court’s order.
(Id.)
19
While Williamson contests the
grounds for court-supervised notice, she does not address the
sufficiency of these proposed forms of notice in her brief.
“Courts have discretion to facilitate notice to potential
plaintiffs in appropriate cases.”
Hollis, 2017 WL 3327591, at *4
(M.D.N.C. Aug. 3, 2017) (quoting Beasley v. Custom Commc'ns, Inc.,
No. 5:15–CV–583–F, 2016 WL 5468255, at *6 (E.D.N.C. Sept. 28,
2016)).
In exercising their discretion to facilitate notice of a
collective
action
under
the
FLSA,
district
courts
routinely
approve initial notice to potential plaintiffs by regular mail,
email, and posting at the defendant’s workplace.
See, e.g., Evans
v. Caregivers, Inc., No. 3:17-CV-0402, 2017 WL 2212977, at *7 (M.D.
Tenn. May 19, 2017) (approving notice to potential class members
comprised of home healthcare workers by regular mail, email, and
posting in defendant’s office locations); Arnold v. Acappella,
LLC, No. CV BPG-15-3001, 2016 WL 5454541, at *4-5 (D. Md. Sept.
29, 2016) (approving notice by regular mail, email, and posting in
the defendant’s restaurant).
However, courts are divided as to
whether reminder notices to putative class members are appropriate
in FLSA actions.
Compare Walters v. Buffets, Inc., No. 6:13-CV-
02995-JMC, 2016 WL 4203851, at *1 (D.S.C. Mar. 1, 2016) (approving
the issuance of a reminder postcard, finding such notice consistent
with
“the
FLSA's
intentions
to
inform
as
many
plaintiffs
as
possible of their right to opt into a collective action like the
one here”), with Byard, 287 F.R.D. at 373 (finding a reminder
20
notice to be “unnecessary and potentially improper,” noting that
“numerous district courts around the country have found that
reminder notices have a tendency to both stir up litigation and
inappropriately encourage putative plaintiffs to join the suit”
(citations and internal quotations omitted)).
“[C]ourts also have broad discretion regarding the details of
the notice sent to potential opt-in plaintiffs.”
Hollis, 2017 WL
3327591, at *4 (quoting Beasley, 2016 WL 5468255, at *6); Lee, 236
F.R.D. at 202 (“[T]he Supreme Court has noted that the ‘details’
of notice should be left to the broad discretion of the trial
court.”)
“The overarching policies of the FLSA's collective suit
provisions require that the proposed notice provide ‘accurate and
timely notice concerning the pendency of the collective action, so
that [potential plaintiffs] can make informed decisions about
whether to participate.’”
Butler v. DirectSAT USA, LLC, 876 F.
Supp. 2d 560, 574–75 (D. Md. 2012) (quoting Whitehorn v. Wolfgang's
Steakhouse, Inc., 767 F. Supp. 2d 445, 450 (S.D.N.Y. 2011)).
the
initial
certification
stage,
including
when
crafting
“At
an
appropriate notice to be sent, ‘trial courts must take care to
avoid even the appearance of judicial endorsement of the merits of
the action.’”
Colozzi, 595 F. Supp. 2d at 210 (quoting Hoffmann–
La Roche, 493 U.S. at 174).
With regard to the type of notice, the court finds that
Clark’s request for notice by regular mail, email, and posting in
21
a prominent location in the employer’s offices are not unduly
burdensome and are appropriate to further the remedial purpose of
the FLSA by providing notice to collective members.
See Evans,
2017 WL 2212977, at *7; Arnold, 2016 WL 5454541, at *4-5.
regard
to
the
proposed
reminder
notices,
Clark
has
With
raised
legitimate concerns regarding the ability to reach potential class
members who may be often engaged in care assignments away from
their homes.
(Doc. 16-1 at 16-17.)
Given that Williamson has not
raised any specific objection to this type of notice, the court
grants Clark’s request to send reminder postcards.
See Walters,
2016 WL 4203851, at *1.
The court denies the request to make
scripted
to
reminder
calls
collective
members
who
have
not
responded to the initial notice on the grounds that such calls are
cumulative and have the risk of pressuring would-be plaintiffs to
act.
See Byard, 287 F.R.D. at 373; cf. Jones v. Cretic Energy
Servs., LLC, 149 F. Supp. 3d 761, 776–77 (S.D. Tex. 2015) (finding
that reminder notices via mail, email, and telephone calls was
proper, where potential class members worked in remote locations
far from their homes for extended periods of time).
As to the contents of the proposed notice, the court has
considered language and contents of Clark’s proposed notices and
finds them acceptable.
The court finds that Williamson has waived
any potential objection to the contents of the notice by failing
to address this issue in its brief.
22
Cf. Landress v. Tier One Solar
LLC, 243 F. Supp. 3d 633, 639 n.7 (M.D.N.C. 2017) (noting that
where a party fails to develop an issue in its brief, courts have
deemed the issue waived (citing Belk, Inc. v. Meyer Corp., U.S.,
679 F.3d 146, 152 n.4 (4th Cir. 2012))).
However, the court will
require the notices to state the following additional disclosures:
If you join the lawsuit, Plaintiff's counsel will
represent you unless you decide to hire your own attorney
at your own expense. While the suit is proceeding, you
may be required to provide information, sit for
depositions, and testify in court.
See Byard, 287 F.R.D. at 374 (“Courts ‘routinely accept[ ]’ text
notifying potential plaintiffs ‘of the possibility that they will
be required to participate in discovery and testify at trial.’”
(quoting Whitehorn, 767 F. Supp. 2d at 450); Rosinbaum, 238 F.
Supp. 3d at 747 (approving modification to proposed notice, stating
“[i]f you join the lawsuit, Plaintiffs’ counsel will represent you
unless you decide to hire your own attorney at your own expense”).
The court also approves Clark’s request to have the proposed
notices translated into Spanish for those putative class members
with
a
Hispanic
surname.
See
Valerio,
314
F.R.D.
at
76
(“Generally, courts permit notice to be translated into the mother
tongue of non-English speaking groups of potential plaintiffs.”
(internal quotations and citation omitted)).
Clark requests that the court set a 60-day opt-in period from
the date of the mailing of the notice.
(Doc. 16-1 at 20.)
Williamson has not addressed this particular request.
23
The court
finds that a 60-day notice period is appropriate.
See Byard, 287
F.R.D. at 373 (approving 60-day opt-in period, noting “courts in
this circuit routinely find that an opt-in period between 30-60
days is appropriate”); Valerio, 314 F.R.D. at 76 (“[A] 60–day
notice period for potential plaintiffs is common practice under
the FLSA.” (citation omitted)).
The notices shall reflect that
opt-ins have 60 days to return the consent form to counsel.
III. CONCLUSION
Based on these findings,
IT IS HEREBY ORDERED that:
1.
Plaintiff’s motion for conditional certification (Doc.
16) is GRANTED as to the FLSA collective, defined as:
All current and former home healthcare workers (personal
care aides, certified nursing assistants and in-home
aides) who worked for LaShonda Swindell Williamson d/b/a
Impact Home Care Services at any time since January 1,
2015 and who were classified as an independent
contractor and who were not paid time and a half for all
hours worked over 40 in a work week.
2.
Plaintiff’s proposed notices, as modified in accordance
with this memorandum opinion and order, are APPROVED (Docs. 1612, 16-13, 16-14), and the opt-in period shall extend to sixty
(60) days from the date the notice is mailed to putative class
members.
3.
Plaintiff’s counsel is authorized to send the approved
notice by first-class U.S. mail to the last known address of each
24
putative plaintiff within fourteen (14) days of the entry of this
order;
4.
Plaintiff’s counsel is authorized to send an electronic
copy of the approved notice to each putative plaintiff’s personal
email address (for former employees) and work email address (for
current employees) within fourteen (14) days of the entry of this
order;
5.
Plaintiff’s
counsel
is
authorized
to
re-mail
notices/postcards that are returned as undeliverable for those
individuals for whom counsel can find better addresses;
6.
Plaintiff’s counsel is permitted to call any individual
whose notice is returned as undeliverable for the limited purpose
of obtaining a current address for re-mailing notice;
7.
Plaintiff’s counsel is permitted to send by first-class
U.S. mail, the reminder postcard, in the form approved by the
court, to potential opt-in plaintiffs who have not returned their
Consent Form, thirty (30) days before the expiration of the optin period;
8.
Defendant
shall
post
the
approved
notice
in
a
conspicuous place in her offices within fourteen (14) days of entry
of the order; and
9.
Defendant
shall
provide
Plaintiff’s
counsel,
in
electronically readable/importable form, the names, addresses,
email addresses, and any employee number or unique identifier of
25
all collective members within seven (7) days of the entry of this
order.
Defendant shall to provide, within seven (7) days of the
request
by
Plaintiff’s
counsel
and
in
electronically
readable/importable form, the dates of birth, telephone numbers,
and the last four digits of the social security number of any
individual
whose
undeliverable.
Plaintiff's
mailing
notice
is
returned
as
This information shall only be disseminated among
counsel
and
Plaintiff's
counsel
may
use
this
information only in connection with this litigation as permitted
in this memorandum opinion and order.
/s/
Thomas D. Schroeder
United States District Judge
March 30, 2018
26
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