Mayhew v. Loved Ones In Home Health Care, LLC et al

Filing 23

MEMORANDUM OPINION AND ORDER granting the plaintiffs' 5 MOTION for conditional certification of the present action as a collective action under the Fair Labor Standards Act, 29 U.S.C. § 216(b); and ORDERS that: The class is condition ally certified as consisting of all non-exempt employees who have worked for one of the defendants at any time during the 3 years preceding 7/28/2017; by 12/11/2017, plaintiffs shall propose a form of the first notice to the defendants and the cou rt; by 12/11/2017, Loved Ones shall provide plaintiffs' counsel with the names and last known addresses of all class members; and by 12/14/2017, defendants have an opportunity to object to the form of the notice and negotiate, in good faith, a mutually agreeable form with plaintiffs, which form shall then be submitted for approval to the court by 12/20/2017. Signed by Judge John T. Copenhaver, Jr. on 12/1/2017. (cc: counsel of record) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
PAMELA MAYHEW, BETSY FARNSWORTH,
on behalf of themselves and others
similarly situated,
Plaintiffs,
v.

Civil Action no. 2:17-cv-03844

LOVED ONES IN HOME CARE, LLC,
and DONNA SKEEN,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is the plaintiffs’ motion for
conditional certification of the present action as a collective
action under the Fair Labor Standards Act (the “Act”), 29 U.S.C.
§ 216(b), filed on August 30, 2017.

Plaintiffs seek such

certification on behalf of all similarly situated employees of
the defendants impacted by the same or similar pay practices as
those pay practices that deprived plaintiffs of overtime pay.
The motion is accompanied by plaintiff Mayhew’s affidavit.
Defendants have filed a response in opposition.

Plaintiffs,

alleging a willful violation, seek recovery for the three years
that precede the filing of the original complaint on July 28,
2017.

Among its other affirmative defenses, Loved Ones contends

it was exempt from the Act’s overtime pay requirements, based on
29 U.S.C. § 213(a)(15), the scope of which arguably encompassed

home health care workers, such as the plaintiffs.

I.

Facts

The court accepts the background facts, primarily as
they are presented in the motion as well as in the second
amended complaint (hereinafter “Complaint” or “Compl.”), as true
for the purposes of considering this motion.

Plaintiffs have

worked for defendant Loved Ones, a third party provider of home
health care services in West Virginia, as home health care
workers.

Defendant Donna Skeen is a “member or the managing

member” of Loved Ones, controls its “day-to-day operations,” and
is an “employer” as that term is defined in the Act.
§ 203(d); Compl. ¶ 3.

29 U.S.C.

Plaintiff Mayhew is affiliated with Loved

Ones’ office in South Charleston, and plaintiff Farnsworth is
affiliated with its location in Ripley.
While plaintiffs regularly and consistently worked in
excess of a forty-hour workweek and were allegedly at no time
exempt from the Act’s wage and hour requirements, they were not
paid all of the overtime pay they were owed until defendants
changed their payroll practices in May 2017 to bring them into
compliance.

Defendants’ failure to pay an enhanced overtime

rate was allegedly “deliberate and knowing” as evidenced by the
“elaborate measures Defendants have employed to avoid detection
and challenge.”

Compl. ¶ 11.

As a significant part of that
2

failure, between “early” 2016 and May 2017, defendants made out
two distinct paychecks for each workweek with straight-time
compensation on each check without regard for hours on the
other.

At other times (presumably prior to early 2016),

defendants did not pay overtime despite including all the time
on a single paycheck.

Id. ¶¶ 12-14.

Other employees were also

adversely affected by similar payroll practices, which were
based on uniform protocols.

Id. ¶ 15, 22; Ans. to Compl. ¶ 19.

When Mayhew asked her employer about the overtime pay practices,
she was told that the practices were “legal and proper because
they paid hours by individual funding sources.”

Mot. at 4.

Loved Ones explains that as a home health aide/home care
provider, Mayhew serves clients under two separate programs, the
personal care program and the Medicaid waiver program, which
were treated as distinct for payroll purposes during the period
from early 2016 to May 2017.

ECF No. 8 at 10.

Thus, during

that period, she was treated as if she had two separate jobs for
overtime pay purposes.
While, as already noted, plaintiffs maintain that they
were covered by the Act’s protections at all relevant times, a
new administrative rule issued by the United States Department
of Labor (“DOL”) made them “specifically subject” to these
protections.

Compl. ¶¶ 7-8.

The rule, with the original

effective date of January 1, 2015, governs the application of
3

the Act’s protections to the home health care industry in
general and to the plaintiffs in particular.

Application of the

Fair Labor Standards Act to Domestic Service, 78 Fed. Reg.
60454-01 (Oct. 1, 2013).

The rule interprets the Act’s

exemption for “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.A. § 213(a)(15).

With respect to third

party employers such as Loved Ones, the rule states as follows:
Third party employers of employees engaged in
companionship services within the meaning of
§ 552.6 may not avail themselves of the minimum
wage and overtime exemption provided by section
13(a)(15) of the Act, even if the employee is
jointly employed by the individual or member of
the family or household using the services.
29 C.F.R. § 552.109.
In contrast, before the new rule went into effect, the statutory
exemption for companionship services included employees of third
party providers, such as Loved Ones, which arguably made its
conduct lawful at the time.

See Home Care Ass’n of Am. v. Weil,

799 F.3d 1084, 1087 (D.C. Cir. 2015).

Understandably,

defendants assert the statutory exemption as one of their
affirmative defenses.

Ans. at 7.

This rule had initially been stayed pursuant to a
decision by the U.S. District Court for the District of

4

Columbia, but on August 21, 2015, the D.C. Circuit overturned
the vacatur of the rule, ordering the district court to enter
summary judgment in favor of the DOL.

Weil, 799 F.3d at 1097.

As a result of this delay, the DOL has chosen to enforce the new
rule starting on November 12, 2015, thirty days after the D.C.
Circuit issued a mandate directing the district court to enter
summary judgment, pursuant to its policy.

80 Fed. Reg. 65646,

65647 (Oct. 27, 2015), whereas plaintiffs assert the rule’s
effective date to be January 1, 2015.
Mayhew complained to the DOL in early 2017, seeking
the back overtime pay she was owed.

While communicating with

the DOL investigators, Mayhew was informed of “DOL’s preliminary
opinion” that defendants had engaged in similar conduct that
violated the Act with respect to seventy other employees working
out of the same South Charleston office.

Farnsworth was subject

to the same conduct even though she works out of Ripley.
¶¶ 20-21.

Compl.

The parties agree that the DOL is now in the process

of attempting to calculate and to settle overtime claims of
approximately 230 similarly situated employees working out of
defendants’ various locations.

Id. ¶ 17; Ans. ¶ 17.

As was already noted, in May 2017, Loved Ones changed
its overtime pay policy across the board, so the plaintiffs
received the overtime pay that was due them after that date.

5

After Mayhew learned that, pursuant to the agency’s general
written policy, DOL would only seek wages back to November 2015,
she instituted the present action with the assistance of her
private counsel, and Farnsworth later joined the action.
Plaintiffs seek damages (including overtime pay due,
liquidated damages and attorney fees, costs, and interest) under
29 U.S.C. § 255 for willful violations of the Act, incurred over
a period of three years that predate the filing of the
complaint.

In addition, they seek this present certification to

issue notice to all similarly situated plaintiffs.

Compl. ¶ 29.

Loved Ones requests that the certification be denied
or, alternatively, stayed pending the DOL settlement, or limited
in scope.
II.
A.

Discussion

Conditional Certification of the Collective Action
Employees may bring a collective action under the Act

on behalf of similarly situated employees.

29 U.S.C. § 216(b).

According to the statute, “[n]o employee shall be a party
plaintiff to any such action unless he gives his consent in
writing to become such a party and such consent is filed in the
court.”

Id.

The Supreme Court authorized courts to facilitate

notice to potential plaintiffs in such collective actions,
emphasizing the importance of “employees receiving accurate and

6

timely notice concerning the pendency of the collective action”
and observing that “[c]ourt authorization of notice serves the
legitimate goal of avoiding a multiplicity of duplicative
suits.”

Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170,

172 (1989).

The Supreme Court underscored the district court’s

discretion in managing the certification process.

Id. at 171.

As a consequence, many courts have chosen to adopt a
two-stage approach to managing collective actions under the Act,
which originates in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.
1987).

The first stage consists of conditional certification to

give notice to potential class members and takes place early in
the litigation, before much of the discovery.

At the first stage,

the court requires only a “modest factual showing” that potential
plaintiffs are “similarly situated,” as the statute requires. That
showing “is ordinarily based mostly on parties’ pleadings and
affidavits.”
(D.D.C.

See Encinas v. J.J. Drywall Corp., 265 F.R.D. 3, 6

2010).

decertification
discovery

has

The

second

motion
taken

by

place,

stage

the

is

usually

defendant,

in

an

attempt

triggered

after
to

plaintiffs are not, in fact, similarly situated.”

much

show

of

that

by

the
“the

Id.

Although the Fourth Circuit has not settled on a
particular test for conditional certification, courts nationwide
generally consider the burden on the named plaintiffs at the

7

a

first stage to be relatively lenient.

See, e.g., Hipp v.

Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218-19 (11th Cir.
2001), cert. denied 519 U.S. 982 (quoting Grayson v. K Mart
Corp., 79 F.3d 1086, 1097 (11th Cir. 1996)) (characterizing the
plaintiff’s burden at the notice stage as “not heavy” and
requiring it to be met by “making substantial allegations of
class-wide discrimination”); Zavala v. Wal Mart Stores Inc., 691
F.3d 527, 536 (3rd Cir. 2012) (internal quotations omitted)
(affirming the use of the two-step approach and noting that the
first-stage “conditional certification” is “not really a
certification” but “actually the district court’s exercise of
[its] discretionary power. . . to facilitate the sending of
notice to potential class members”); Mooney v. Aramco Servs.
Co., 54 F.3d 1207, 1214 (5th Cir. 1995) (“Because the court has
minimal evidence, this determination [at the notice stage] is
made using a fairly lenient standard, and typically results in
‘conditional certification’ of a representative class.”).
In this case, the first-stage burden at the
conditional certification, or notice, stage is met easily.
Plaintiffs cite the May 2017 change of Loved Ones’ approach to
overtime pay as evidence that there was a practice that covered
Loved Ones’ employees generally.

The fact that Loved Ones is in

the midst of settling a DOL investigation of its overtime pay
practices that is designed to determine the amount the workers
8

should recover, coupled with defendants’ argument that this case
be stayed until that is completed, firmly supports the
conclusion that such a practice existed.
Still, Loved Ones contends that Mayhew has not
presented evidence of similarly situated employees, as required
by statute for the collective action to proceed.
contention plainly lacks merit.

However, that

Mayhew’s affidavit states that

other Loved Ones’ employees were subject to the same overtime
pay policy as she was.

ECF No. 5-1.

This statement, in

addition to the foregoing circumstances, and the absence of
contrary evidence, is sufficient at this first stage of
conditional certification.

See Summa v. Hofstra Univ., 715 F.

Supp. 2d 378, 386-87 (E.D.N.Y. 2010) (conditionally certifying a
class of undergraduate or graduate assistants subject to the
university’s common practice of violations under the Act, when
named plaintiffs submitted affidavits and the lead plaintiff
identified seven other students who were also denied appropriate
compensation); Viriri v. White Plains Hosp. Med. Ctr., 320
F.R.D. 344, 350 (S.D.N.Y. 2017) (conditionally certifying a
class of nurses at the hospital, when plaintiff submitted his
own declarations and identified two other employees “who have
shared information about Defendant’s employment practices,” and
noting the importance of the plaintiff’s “alleg[ing] the
specific manner and operation in which such underpayment was
9

effected,” namely, compensating nurses based on predetermined
twelve-hour shifts rather than on the time actually worked,
which regularly exceeded twelve hours).

Similarly, here

plaintiffs identify specific ways in which they were denied
overtime pay, e.g., through the use of separate paychecks
corresponding to separate clients and/or income streams.
¶¶ 12-13.

Compl.

Mayhew further points out that she specifically

raised the issue with both the employer and then the DOL.
Mayhew Affidavit, ECF No. 5-1 ¶¶ 4, 9.
Loved Ones also asks that conditional certification be
denied because, as earlier noted, it is “in the midst of an
ongoing DOL investigation” which is “nearly complete” and would
“moot” the collective action.

The defendant argues that with

the DOL having already calculated preliminary figures of wages
owed, judicial efficiency would not be served by certifying this
action.

ECF No. 8, at 2-4.
However, Loved Ones does not cite, and the court is

not aware of, any authorities holding that collective actions
under the Act should not be allowed to proceed when there are
ongoing DOL investigations into similar claims.

While Loved

Ones certainly prefers to only resolve the DOL investigation,
denying certification on this ground would sit uneasily with the
established law and practice of allowing both public and private

10

enforcement of the Act.

The doctrine of mootness, invoked by

Loved Ones, is inapposite inasmuch as the claims have not been
secured as yet, and, furthermore, plaintiffs seek overtime pay
going back potentially as far as three years (if the violation
is found to be willful), while the DOL is only calculating
overtime pay dating back to November 12, 2015.

Such enforcement

policy in no way signals any legal flaw with crediting the
plaintiffs’ contention that the rule is effective as of January
1, 2015, the date originally envisioned by the DOL.
As the foregoing discussion shows, the court is well
within its discretion to promote judicial efficiency by
facilitating notice to potential plaintiffs in the collective
action, and the plaintiffs presented enough evidence of
similarly situated employees to order such notice.

Moreover,

there is good reason to believe that the alternative path
advanced by Loved Ones, an administrative settlement with DOL,
would not result in the same recovery and would not vindicate
all the rights at issue in this matter, as demonstrated by the
lead plaintiff Mayhew’s path to this action.

Accordingly, the

court finds sufficient cause to grant conditional certification
to proceed with notice to other potential opt-in plaintiffs.

11

B.

Request to Stay Proceedings
As an alternative to denying conditional

certification, Loved Ones, in its response to the motion, asks
the court to stay these proceedings.
In this circuit, “[t]he power to stay proceedings is
incidental to the power inherent in every court to control the
disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants.”

Maryland v.

Universal Elections, 729 F.3d 370, 379 (4th Cir. 2013) (quoting
Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)).

Such a

decision is left to the court’s broad discretion and “calls for
the exercise of judgment, which must weigh competing interests
and maintain an even balance.”

Raplee v. United States, 842

F.3d 328, 335 (4th Cir. 2016) (quoting Landis, 299 U.S. at 25455).

As this court has explained, a court considers three

factors in evaluating whether a stay is appropriate: “(1) the
interests of judicial economy; (2) hardship and equity to the
moving party if the action is not stayed; and (3) potential
prejudice to the non-moving party.”

Tolley v. Monsanto Co., 591

F. Supp. 2d 837, 844 (S.D.W. Va. 2008) (Goodwin, J.) (quoting
Meyers v. Bayer AG, 143 F. Supp. 2d 1044, 1049 (E.D. Wis.
2001)).

Accordingly, the court proceeds to analyze the three

factors to determine whether a stay may be appropriate here.

12

Looking at the first Tolley factor, Loved Ones argues
that the court “should allow the DOL to issue findings of fact
and the opportunity to enter negotiations without the added
pressure of a separate, and virtually identical, cause of
action.

The DOL investigation and the DOL’s proposed settlement

could resolve any and all claims of the potential opt-in
plaintiffs.” (ECF No. 8, at 5).

However, an already-mentioned

peculiarity of the DOL’s enforcement policy renders the factfinding and settlement in that proceeding materially different
from the present action because of the divergence between the
relevant lookback time periods.

In addition, the court notes,

and Loved Ones concedes, that were a stay granted, the action
could still resurface after a possible settlement with DOL, if
some workers refuse to sign on to it due to the insufficient
recovery.

Although Loved Ones frames such a possible outcome as

a way to “promot[e] judicial economy” by “simplify[ing] issues”
and “weed[ing] out” plaintiffs, the incompleteness of DOL’s
fact-finding limits its usefulness so that any efficiency gains
from a stay are outweighed by the potential harm to workers.
ECF No. 8 at 6.

Besides, proceeding with this suit at the same

time that an administrative settlement of lesser scope is being
developed assures the workers that their best interests are
being protected without costs to them.
tilts against granting a stay.
13

Accordingly, the factor

Turning to the second factor, Loved Ones urges that it
would be prejudiced in the event of the denial of a stay because
it would have to “spend substantial time and resources”
litigating this case.

ECF No. 8 at 6.

That circumstance only

occurs because Loved Ones understandably wishes to limit its
exposure at the expense of the plaintiffs and others like them
who have presented a plausible claim to a far greater recovery.
Simple fairness neutralizes this factor.
Finally, in its discussion of the third factor, Loved
Ones emphasizes the wastefulness of plaintiffs’ counsel poring
through the same payroll records and calculating the same back
wages as the DOL.

ECF No. 8 at 7.

That argument would have

merit if potential recovery of back pay could only go back to
November 2015.

Plaintiffs ask for back pay not only to January

1, 2015, but also for willful violations of the Act, for which
the statute of limitations is three years.

Compl. ¶ 26;

29 U.S.C. § 255(a).
District court decisions on the effective date of the
DOL rule are informative and weigh against a stay.

Plainly,

January 1, 2015 represents the majority view of the rule’s
effective date.

See, e.g., Guerrero v. Moral Home Servs., Inc.,

247 F. Supp. 3d 1288, 1291-93 (S.D. Fl. 2017) (discussing cases
and endorsing the “well-reasoned” January 1 view); Richert v.

14

LaBelle HomeHealth Care Serv. LLC, 2:16-cv-437, 2017 WL 4349084,
at *1-3 (S.D. Ohio, September 29, 2017) (same).

Once the

district court’s vacatur of the rule was overruled, the status
quo ante was restored, and, it is held, the rule went into
effect as of January 1, as the DOL intended from the outset.
Kinkead v. Humana, Inc., 206 F. Supp. 3d 751, 754 (D. Conn.
2016) (quoting Harper v. Va. Dep’t of Tax’n, 509 U.S. 86, 97
(1993)).

Some courts espousing this view have specifically

rejected the idea that the DOL’s policy on enforcing the rule
starting in November should matter for private causes of action.
“The
Court
additionally
rejects
Defendant's
argument that the [Department of Labor]'s decision
to delay its own discretionary enforcement of the
[amended regulations] somehow mandates that private
enforcement
actions
must
also
be
delayed,
particularly where the [Department of Labor] has
consistently maintained that the effective date of
the [amended regulations] is January 1.” [ ]
Indeed, a discretionary decision by the Department
of Labor is not binding on individual private
causes of action.
Guerrero, 247 F. Supp. 3d 1288 at 1293 (quoting
Lewis-Ramsey v. Evangelical Lutheran Good
Samaritan Soc’y, 215 F. Supp. 3d 805, 810 (S.D.
Iowa 2016)).
On the other hand, a minority of courts have come down
on the side of a later date, either DOL’s adopted enforcement
date or the date of the D.C. Circuit mandate.
reliance of employers and the DOL policy.
Supp. at 1292 (discussing cases).
15

Reasons include

See Guerrero, 247 F.

One of them is in this

circuit.

In Sanchez v. Caregivers Staffing Servs., Inc., No.

1:15-cv-01579, 2017 WL 380912, at *3 (E.D. Va. Jan. 26, 2017),
the court considers that “the rule was a legal nullity” before
the D.C. Circuit ruling and applying it from January 1, 2015
“would unfairly force employers to pay overtime compensation
when overtime pay for companionship services was not required,”
without offering further discussion.
The court finds persuasive the “overwhelming majority
of well-reasoned opinions” endorsing the January 1 date.
Hypolite v. Health Care Servs. of New York Inc., No. 16-CV04922, 2017 WL 2712947, at *4 (S.D.N.Y. June 23, 2017).

As one

such opinion explained, limiting the effect of the rule to
“fully prospective application requires, at a minimum, that the
new rule of law is ‘unanticipated’ or ‘an issue of first
impression whose resolution was not clearly foreshadowed.’”
Collins v. DKL Ventures, LLC, 215 F. Supp. 3d 1059, 1066 (D.
Colo. 2016) (quoting U.S. v. Johnson, 457 U.S. 537, 550 (1982)).
See Richert, 2017 WL 4349084, at *2.

One can hardly say that of

an administrative rule that was in the works for years and was
slated to go into effect on January 1, 2015.
Accordingly, the non-movants would potentially suffer
prejudice from a stay, as many employees might unknowingly
accept the smaller DOL settlement if they are not given the

16

option of immediately opting into the present suit, which
presents a greater prospect of recovery.

The third factor thus

also tilts against granting a stay.
As the analysis shows, all three factors point to
denying a stay.

For the foregoing reasons, the request for a

stay is denied.

See also Magana v. Shore Construction, LLC,

Civil Action No. 17-1896, 2017 WL 2911353 (E.D. La. July 6,
2017) (denying request for a stay, pending the outcome of a DOL
investigation).

C.

Scope of Notice
Loved Ones argues that not all of its employees are

likely owed overtime pay and that the class should be limited to
those home health aides who serviced clients in both the private
care program and the Medicaid waiver program and worked more
than forty hours for the period between November 12, 2015 and
May 1, 2017, so called “hybrid” aides.

ECF No. 8, at 10-11.

However, Loved Ones does not explain why it believes that
employees who serviced clients only in the private care program
or only in the Medicaid waiver program could not be owed
overtime pay.

For their part, plaintiffs specifically allege

that for at least part of the time period under consideration,
the underpayment did not take the form of separate paychecks by
“stream of payment” but rather involved “simply fail[ing] to pay

17

an enhanced overtime hourly rate . . . despite the inclusion of
all such hours on a single paycheck.”

Compl. ¶ 14.

In

principle, such a method of underpayment does not depend on what
income stream or program a given worker may fall under.

As the

foregoing discussion shows, the date range proposed by Loved
Ones is also unduly restrictive.
Accordingly, the court agrees with plaintiffs that the
purported class at this notice stage is better viewed as “all of
Defendants’ FLSA non-exempt employees who may also have claims
for unpaid overtime.”

Mot. at 4.

In practice, this class

includes all non-exempt employees employed at any time by one of
the defendants or any entities controlled by one of them during
the three years preceding the time of filing of the original
complaint in this action, July 28, 2017.

As already discussed,

defendants will have an opportunity to argue that the class, in
whole or in part, is not “similarly situated” should they file a
decertification motion upon future discovery.

D.

Method of Notice
Plaintiffs’ counsel is asking the court to order that

defendants provide the names and last known addresses of all
putative class members so that notices of the pending action can
go out to them.

They also request dates of birth and partial

social security numbers for those workers whose mailed notices

18

are returned by the post office.

Plaintiffs’ counsel would

additionally like to obtain permission to send a follow-up
postcard to class members who have not responded within thirty
days.

Finally, plaintiffs request that in addition to the

individual mailings, a copy of the notice be posted at all of
the defendants’ worksites in the same areas in which they post
required notices under the Act.
Loved Ones, citing multiple cases, objects that
providing the dates of birth and social security numbers is
unnecessary and would constitute an invasion of privacy absent a
demonstrated “special need.”

Loved Ones believes such

disclosure should only be authorized as a “last resort.”

The

court agrees that plaintiffs should attempt other less invasive
means of contact first, before possibly asking the court again
for permission to obtain such private information.

See, e.g.,

Valerio v. RNC Indus., 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.”); Woods v. Club Cabaret,
Inc., 140 F. Supp. 3d 775, 785 (C.D. Ill. 2015) (“Likewise,
dates of birth and the last four digits of social security

19

numbers would be of marginal use in locating potential
plaintiffs and, whatever that marginal use might be, it is
substantially outweighed by the privacy concerns of potential
plaintiffs.”); Martinez v. Cargill Meat Sols., 265 F.R.D. 490,
501 (D. Neb. 2009) (denying the plaintiffs’ request for social
security and telephone numbers when “there is no evidence
indicating Cargill is unable or unwilling to provide correct and
current addresses for its employees”); but see Hussein v.
Capital Building Servs. Grp., Inc., 152 F. Supp. 3d 1182, 1199200 (D. Minn. 2015) (finding that the requested contact
information, including date of birth and the last four digits of
the social security number, “may prove necessary” and ordering
its production).
Loved Ones also opposes sending a follow-up postcard.
The court finds, however, that the request to send a follow-up
postcard is reasonable if the postcard, like the first notice,
is carefully crafted to avoid the appearance that the court
endorses the action or encourages participation.

See, e.g.,

Murray v. Silver Dollar Cabaret, Inc., Case No. 5:15-CV-5177,
2017 WL 514323, at *5 (W.D. Ark. Feb. 8, 2017); Woods v. Vector
Marketing Corp., No. C-14-0264 EMC, 2015 WL 1198593, at *7 (N.D.
Cal. Mar. 16, 2015).

Accordingly, the court will review the

postcard for the presence and adequacy of such a disclaimer.

20

Finally, Loved Ones opposes the request to post notice
in the common areas of its facilities because “[s]uch posting
will only create chaos and confusion” and “cause tension in the
workplace.”

ECF No. 8 at 16.

The concern seems overblown

inasmuch as Loved Ones only rectified its deficient pay
practices in May of 2017, so a fair number of the current
employees are likely to be in the affected class, and
realistically most if not all workers will know about the
overtime pay concern because of the pending DOL settlement
anyway.

Courts routinely approve posting a notice in similar

cases even though notice is also sent by mail because “[p]osting
notice in the workplace maximizes potential plaintiffs'
opportunities to be informed of the pendency of the litigation
and consider whether to opt in.”

Bittencourt v. Ferrara Bakery

& Café Inc., 310 F.R.D. 106, 118 (S.D.N.Y. 2015) (internal
quotation omitted; citing cases); see also, e.g., Calderon v.
King Umberto, Inc., 892 F. Supp. 2d 456, 464 (E.D.N.Y. 2012);
Pereira v. Foot Locker, Inc., 261 F.R.D. 60, 68 (E.D. Pa. 2009)
(“Posting Notice in the workplace of the putative class members
strikes this Court as an effective and efficient way to ensure
that potential class members are aware of the litigation.
Defendant has not detailed how a Notice

. . . would be

disruptive to the staff.”); but see Fenley v. Wood Grp. Mustang,
Inc., 170 F. Supp. 3d 1063, 1074-75 (S.D. Ohio 2016) (noting
21

that there is no one-size-fits-all approach to notice and
refusing to order posting of notice for a class of inspectors).
Here, as in Pereira, Loved Ones has not detailed how
posting a notice would be disruptive, and considering the class
of workers in this litigation, there is reason to believe that
reaching them by mail alone may not be sufficiently effective,
e.g., due to changes of address.

The Fenley court, noting the

diversity of circumstances bearing on the court’s discretionary
decision on what methods of notice are most effective in a given
situation, cited a case where “oil-and-gas-industry workers were
unlikely to receive ordinary mail due to their work
responsibilities and being away from their homes for extended
periods.”

170 F. Supp. 3d at 1075 (citing Thompson v. Peak

Energy Servs. USA, Inc., No. CIV.A. 13-0266, 2013 WL 5511319, at
*3 (W.D. Pa. Oct. 4, 2013)).

Accordingly, the court agrees with

plaintiffs and orders that the initial notice sent by plaintiffs
to the employees of Loved Ones be then posted in the South
Charleston and Ripley offices of Loved Ones as well as in any
other places where Loved Ones or Donna Skeen ordinarily place
required notices under the Act.
Further, the court agrees with Loved Ones that before
any notice is sent, defendants should be given an opportunity to
review it and communicate any concerns they might have.

22

In

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
addition, the court wishes toAT CHARLESTON
review and approve the notice.
THOMAS PARKER,
III. Conclusion
Plaintiff,
v.

For the foregoing reasons, the court hereby grants the
Civil Action No. 15-14025

plaintiffs’ motion and ORDERS that:
THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM,
an Employee Welfare Benefits Plan,
LIBERTY 1. The ASSURANCE conditionally certified as consisting
LIFE class is COMPANY OF BOSTON,
a Massachusetts Corporation, and
of all non-exempt employees who have worked for one
DOES 1 THROUGH 10, inclusive,
of the defendants at any time during the three years
Defendants.
preceding July ORDER AND NOTICE
28, 2017;
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that
2. By December 11, 2017, plaintiffs shall propose a the
following dates are hereby fixed as the time by or on which
certain events of the first notice to the defendants and the
form must occur:
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
court;
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
3. By December 11, 2017, Loved Ones shall provide
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
plaintiffs’ counsel with the names and last known
02/08/2016
Last day for Rule 26(f) meeting.
02/15/2016addresses day all file Report of Parties= Planning
Last of to class members; and
Meeting. See L.R. Civ. P. 16.1.
4. By December 14, 2017, defendants have an opportunity
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
to object United Statesof the notice and negotiate,
Byrd to the form Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
in good faith, a appear.
directed to mutually agreeable form with
02/29/2016plaintiffs, which form shall then be submitted for
Entry of scheduling order.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
approval to the court by December 20, 2017.
The Clerk is requested to transmit this Order and
The Clerk is directed to forward copies of this order
Notice to all counsel of record and to any unrepresented
to parties.
all counsel of record.
DATED: January 5, 1, 2017
ENTER: December 2016
23

John T. Copenhaver, Jr.
United States District Judge