Kennedy et al v. Certain Care, LLC et al

Filing 18

Opinion & Order signed by Judge James S. Gwin on 3/9/18. The Court, for the reasons set forth in this order, grants conditional certification of the collective action set forth in this entry. Within 15 days of the date of this order, defenda nts shall provide plaintiffs with the information set forth in the order. The parties shall meet and confer regarding proposed notification and consent forms, which the parties shall submit to the Court within 15 days of the date of this order along with a report of how the forms will be sent to prospective plaintiffs. (Related Doc. 13 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------:
:
:
:
:
:
:
:
:
:
:

MELISSA KENNEDY, et al.,
Plaintiffs,
vs.
CERTAIN CARE, LLC, et al.,
Defendants.

CASE NO. 1:17-cv-2444

OPINION & ORDER
[Resolving Doc. 13]

-----------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiffs are home health care workers who allege that their employers, Defendants
Certain Care, LLC (“Certain Care”) and Denise Riehele, failed to pay them overtime wages in
violation of the Fair Labor Standards Act (FLSA).1 Plaintiffs move for conditional certification
of an FLSA collective action for themselves and others similarly situated.2 Defendants oppose.3
For the reasons below, the Court GRANTS conditional certification.
I. BACKGROUND
Each of the named Plaintiffs – Melissa Kennedy, Antonia Mitchell, Renee Camarillo,
Belinda Pierce, and Pebbles McArthur – worked as home health care workers for Defendant
Certain Care sometime between January 1, 2015 and the present.4 They allege that Certain Care
had a uniform policy of not paying their home health care workers, including the named Plaintiffs,
any overtime pay for hours worked over 40 hours a week in violation of the FLSA.5
Plaintiffs now move to conditionally certify a collective action of:

1

Doc. 1.
Doc. 13.
3
Doc. 17.
4
Doc. 13-1 at ¶ 3; Doc. 13-3 at ¶ 3; Doc. 13-5 at ¶ 3; Doc. 13-7 at ¶ 3; Doc. 13-9 at ¶ 3.
5
Doc. 13-1 at ¶¶ 9-10; Doc. 13-3 at ¶¶ 9-10; Doc. 13-5 at ¶¶ 9-10; Doc. 13-7 at ¶¶ 9-10; Doc. 13-9 at ¶¶ 9-10.
2

Case No. 1:17-cv-2444
Gwin, J.
All home health care workers who have been employed by Certain Care, LLC from
January 1, 2015 to the present and worked more than forty (40) hours in one or
more workweeks.6
II. LEGAL STANDARD
Under 29 U.S.C. § 216(b), a plaintiff employee alleging an FLSA violation can bring a
representative action for herself and similarly situated persons. To do so, “1) the plaintiffs must
actually be ‘similarly situated,’ and 2) all plaintiffs must signal in writing their affirmative consent
to participate in the action.”7
While the FLSA does not define “similarly situated,” the Sixth Circuit has said that FLSA
plaintiffs may proceed collectively when “their claims [are] unified by common theories of
defendants’ statutory violations, even if the proofs of these theories are inevitably individualized
and distinct.”8
The Sixth Circuit uses a two-stage certification process to determine whether a proposed
group of plaintiffs is “similarly situated.”9
First, there is the “notice” stage that occurs at the beginning of discovery.10 At this stage,
a plaintiff must make only a “modest factual showing” and needs to show “only that his position
is similar, not identical, to the positions held by the putative class members.”11 Because a district
court has limited evidence at this stage, this standard is “fairly lenient,” and “typically results in
‘conditional certification’ of a representative class.”12

6

Doc. 13 at 9.
Comer v. Wal–Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) (citations omitted).
8
O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir. 2009).
9
Comer, 454 F.3d at 546-47.
10
Id. at 546.
11
Id. at 547 (quotations omitted).
12
Id. (citations omitted).
7

-2-

Case No. 1:17-cv-2444
Gwin, J.
The second stage occurs after “all of the opt-in forms have been received and discovery
has concluded.”13 “At the second stage, following discovery, trial courts examine more closely
the question of whether particular members of the class are, in fact, similarly situated.”14
III. ANALYSIS
Plaintiffs have met the “modest factual showing” required for conditional certification of
this collective action.
In support of their motion, Plaintiffs submit declarations stating that they worked as home
health care workers for Certain Care and were paid the same hourly rate for all hours worked.15
Plaintiffs submit their earning statements as corroboration.16

Plaintiffs also state in their

declarations they understood that all home health aides for Certain Care were subject to the same
pay policies.17
Plaintiffs’ declarations and invoices are more than sufficient to make a “modest factual
showing” that they are “similarly situated” to the putative collective action members.
Defendants’ arguments opposing conditional certification do not succeed.
First, Defendants argue that the time period for the proposed collective action exceeds the
FLSA’s two-year statute of limitations.18 Because Plaintiffs filed this action on November 21,
2017, Defendants argue that the starting date for the collective action time period should be
November 21, 2015.19

13

Id.
Id.
15
Doc. 13-1 at ¶ 7; Doc. 13-3 at ¶ 7; Doc. 13-5 at ¶ 7; Doc. 13-7 at ¶ 7; Doc. 13-9 at ¶ 7.
16
Doc. 13-2; Doc. 13-4; Doc. 13-6; Doc. 13-8; Doc. 13-10.
17
Doc. 13-1 at ¶¶ 9-10; Doc. 13-3 at ¶¶ 9-10; Doc. 13-5 at ¶¶ 9-10; Doc. 13-7 at ¶¶ 9-10; Doc. 13-9 at ¶¶ 9-10.
18
Doc. 17 at 4.
19
Id. at 5.
14

-3-

Case No. 1:17-cv-2444
Gwin, J.
The Court disagrees. The FLSA permits a three-year statute of limitations for willful FLSA
violations.20

Plaintiffs have alleged that Defendants willfully violated the FLSA. 21 While

Defendants argue that there is no evidence of willfulness,22 that is ultimately a merits question not
appropriate for consideration on a motion for conditional certification.23
Next, Defendants argue that even if a three-year statute of limitations applies, the proposed
time period should only start on October 13, 2015, when the Department of Labor (DOL) rule24
requiring overtime pay for home health care workers became final.25 Although the final DOL rule
was to take effect on January 1, 2015,26 Defendants argue that the rule did not become final until
October 13, 2015 when the D.C. Circuit issued its mandate reversing the district court’s 2014 order
vacating the rule.27
The Sixth Circuit has not addressed this issue, and district courts have come to conflicting
conclusions.28 The Court, however, follows the reasoning from many district courts and finds that
the DOL rule became final on January 1, 2015.29
In Harper v. Virginia Department of Taxation, the Supreme Court held that judicial
decisions, as opposed to statutes and regulations, apply retroactively.30 According to this principle,
when a court applies a rule of law to the parties before it, “that rule is the controlling interpretation
of federal law and must be given full retroactive effect in all cases still open on direct review and

20

29 U.S.C. § 255(a).
Doc. 1 at ¶¶ 44, 54, 61, 62, 73, 74.
22
Doc. 17 at 5.
23
See, e.g., Hamric v. True N. Holdings, Inc, No. 1:16-CV-01216, 2016 WL 3912482, at *2 (N.D. Ohio July 20,
2016).
24
29 C.F.R. § 552.6.
25
Doc. 17 at 4-5.
26
29 C.F.R. § 552.6; see also 80 Fed. Reg. 65646 (Oct. 27, 2015).
27
Doc. 17 at 3-4 (citing Home Care Ass’n of Am. v. Weil, 799 F.3d 1084, 1097 (D.C. Cir. 2015)).
28
See Brittmon v. Upreach, LLC, No. 2:17-CV-219, 2018 WL 557920, at *3 (S.D. Ohio Jan. 23, 2018).
29
See, e.g., id. at *3; Richert v. LaBelle HomeHealth Care Serv. LLC, No. 2:16-CV-437, 2017 WL 4349084, at *2-3
(S.D. Ohio Sept. 29, 2017); Dillow v. Home Care Network, Inc., No. 1:16-CV-612, 2017 WL 749196, at *4 (S.D.
Ohio Feb. 27, 2017).
30
Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993).
21

-4-

Case No. 1:17-cv-2444
Gwin, J.
as to all events, regardless of whether such events predate or postdate [the court’s] announcement
of the rule.”31
Therefore, under Harper, the D.C. Circuit’s reversal of the district court’s vacatur of the
final DOL rule made the final DOL rule effective as of January 1, 2015. Accordingly, the Court
finds no issue in conditionally certifying a collective action for a time period that begins on January
1, 2015.
Lastly, Defendants argue that Plaintiffs are not similarly situated to the prospective
collective action members because they violated non-competition and non-disclosure
agreements.32
The Court fails to see how this concerns whether Plaintiffs received overtime payment
under the FLSA during their employment with Certain Care, which is the only matter at issue in
this conditional certification motion. Even if Plaintiffs’ alleged violations were relevant, such
information still does not defeat conditional certification. The named Plaintiffs need not be
“identical” to the prospective collective action members in order to be “similarly situated.”
IV. CONCLUSION
For the above reasons, the Court GRANTS conditional certification of the following
collective action:
All home health care workers who have been employed by Certain Care, LLC from
January 1, 2015 to the present and worked more than forty (40) hours in one or
more workweeks.
The Court ORDERS Defendants to provide Plaintiffs with the name, last known home
address (including zip code), last known telephone number, last known email address, and dates

31
32

Id.
Doc. 17 at 5-7.

-5-

Case No. 1:17-cv-2444
Gwin, J.
of employment of all individuals within the above-defined collective action. Defendants are to
provide this information to Plaintiffs within fifteen days of this Order.
Additionally, the Court ORDERS the parties to meet and confer regarding the proposed
notification and consent forms to be issued by the Plaintiffs apprising potential plaintiffs of their
rights under the FLSA to opt-in as parties to this litigation. The Court ORDERS that, within
fifteen days of the date of this Order, the parties shall submit to the Court the proposed language
for the notification and consent forms, along with a report of how the forms will be sent to
prospective plaintiffs. In drafting the proposed notification language, the parties should “be
scrupulous to respect judicial neutrality” and “take care to avoid even the appearance of judicial
endorsement of the merits of the action.”33

IT IS SO ORDERED

Dated: March 9, 2018

33

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 174 (1989).

-6-