KATHERINE B. FORREST, District Judge.
On July 24, 2017, plaintiff Carmen Rodriguez de Carrasco ("Carrasco") brought this action against defendants Life Care Services, Inc. ("Life Care"), and Roselyn Zelman, for violations of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201
On October 30, 2017, plaintiff moved both to conditionally certify a collective action under 29 U.S.C. § 216(b) and also for class certification of her NYLL claims pursuant to Rules 23(a) and 23(b)(2) and (3). Fed R. Civ. P. 23.
For the reasons set forth below, the motion is GRANTED in part and DENIED in part.
In support of her motion for certification, plaintiff submitted a declaration from herself (ECF No. 18, Carrasco Decl.), and Home Healthcare Aide ("HHA") Marie Bellegarde (ECF No. 19, Bellegarde Decl.). In opposition to plaintiff's motion, defendants submitted a declaration from defendant Zelman (ECF No. 23, Zelman Decl.), attached to which were,
Plaintiff is an HHA employed by defendant Life Care. Life Care is a New York Corporation; its Executive Director and Chief Executive Offer is Roselyn Zelman, who has held that position for the last six years. (Compl. ¶¶ 9-11.)
Plaintiff has been employed by Life Care from about July 28, 2009 until about January 8, 2016 (the "Time Period"). (
Carrasco states that her duties included
Plaintiff alleges that defendants hired at least forty similar HHAs, who were also not paid proper overtime, or properly compensated for twenty-four hour shifts. (
Defendants attach their policies—including: 1) a policy that requires any HHA who does not take meal breaks or get uninterrupted sleep to report to Life Care; 2) wage statements for Carrasco and Bellegarde; and 3) the New York Labor Law 195.1 Notice of Pay Rate for Carrasco and Bellegarde. (Zelman Decl., Exs. A, F, G, H, I.)
Plaintiff seeks to certify two FLSA collective actions and five New York State classes as follows:
II. LEGAL STANDARDS
Section 216(b) of the FLSA authorizes employees to maintain collective actions where they are "similarly situated" with respect to the alleged violations of the FLSA. 29 U.S.C. § 216(b);
Certification of a "collective action" is a two-step process in the Second Circuit.
At the second step, defendants have the opportunity to move for decertification if, after additional discovery, the record shows that the opt-in plaintiffs are not, in fact, similarly situated to the named plaintiffs.
A plaintiff seeking certification of a class must prove by a preponderance of the evidence that his or her proposed class meets the requirements of Federal Rule of Civil Procedure 23(a) and, if those requirements are met, that the class is maintainable under at least one of the subdivisions of Federal Rule of Civil Procedure 23(b).
Pursuant to Rule 23(a), a court must determine whether a proposed class satisfies four requirements: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.
In this Circuit, "numerosity is presumed at a level of 40 members."
To establish commonality, plaintiff must prove that "the class members have suffered the same injury."
Typicality is satisfied when "each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability."
To satisfy the adequacy requirement, plaintiff must prove that the interests of the named plaintiff are not antagonistic to other members of the class, and that plaintiff's attorney is qualified, experienced, and able to conduct the litigation.
In addition to meeting the Rule 23(a) requirements, in order to continue to maintain status as a class, the moving party must be able to demonstrate by a preponderance of the evidence that the class meets the requirements of one of Rule 23(b)'s subsections.
Rule 23(b)(3) allows certification if "the questions of law or fact common to all class members predominate over any questions affecting only individual members, and . . . a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b);
Section 207 of the FLSA mandates certain overtime payments. Specifically, it requires overtime compensation "at a rate not less than one and one-half times the regular rate at which [the employee] is employed." 29 U.S.C. § 207(a)(1). However, the FLSA also contains several express statutory exemptions from this overtime pay requirement. One such exemption is for "any employee employed in domestic service employment to provide companionship services for individuals who. . . are unable to care for themselves." 29 U.S.C. § 213(a)(15).
Until recently, this exemption applied to all HHAs, unless they could show that their general household work exceeded 20% of the total weekly hours worked. However, in 2013 the Home Health Care exemption was narrowed, and no longer applies to HHAs employed by Third Party Employers.
In October 2013, the Department of Labor ("DOL") issued an interpretive regulation, the "Third Party Employment" regulation, 29 C.F.R. § 552.109 (2015) (the "DOL Regulation"), which stated that "Third party employers of [HHAs] may not avail themselves of the minimum wage and overtime exemption provided by section 13(a)(15) of the Act." At the same time it implemented a revised definition of "Companionship Services." 29 C.F.R. § 552.6 (2015). The regulations were intended to bring more HHAs into the scope of the FLSA.
Before they could go into effect, the regulations were challenged in Federal Court; plaintiffs brought suit stating that the DOL had exceeded its rulemaking authority. The District Court for the District of Columbia agreed, and vacated both regulations.
A number of cases have litigated when the DOL Regulation became effective. The great majority of courts have found that the DOL Regulation was effective as of January 1, 2015, the date on which it was originally scheduled to take effect.
Only a few courts have found that the DOL Regulation should
The Court joins the other courts in this circuit and the majority of other courts to consider the issue in finding that the DOL Regulation took effect on January 1, 2015. The Court finds that the presumption of retroactivity of judicial opinions is controlling here; any prejudice to defendants is not enough to overcome this fundamental tenet, articulated by the Supreme Court, for example, in
In
New York state law incorporates the federal law, and provides that those employees subject to the exemptions shall be paid overtime at a wage rate that is one and one-half times the basic minimum hourly rate. 12 N.Y.C.R.R. § 142.3-1
Under Federal Regulations, an employer can deduct up to eleven hours from a twenty-four hour shift by deducting eight hours of sleep time (so long as five of those hours are uninterrupted), and up to three one-hour meal breaks.
(emphasis added).
In sum, the New York Regulation's plain language previously appeared to mandate that the required minimum wage varied based upon the employee's
However, on March 11, 2010, the New York Department of Labor (NYDOL) issued an Opinion Letter (the "Opinion Letter") advising 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 for sleep and actually receive five hours of uninterrupted sleep, and that they are afforded three hours for meals,"
Several New York state appellate courts concluded that the Opinion Letter conflicted with the New York Regulation and, hence, should not be followed.
In contrast, the federal district courts in this district have found that the Opinion Letter is entitled to deference. In
While this Motion was pending, on October 25, 2017 the NYDOL amended 12 N.Y.C.R.R. § 142-2.1(b) to add the following provision:
12 N.Y.C.R.R. § 142-2.1(b).
The amendment was promulgated, because:
(Zelman Decl., Ex. O, 10/25/17 N.Y. St. Reg. LAB-43-17-0002-E) (emphasis added).
The Court here joins the other federal district courts that have considered the issue and rejects the
Plaintiff seeks a variety of collective and class action certifications. For the reasons forth below, the Court GRANTS both conditional certification of an FLSA collective and class certification of a New York state class on the overtime issue alone. The Court DENIES collective and class certification on any other issue.
Plaintiff argues that she has made the "modest factual showing" required for FLSA conditional certification—and that she can show that she, along with other potential opt-in members, "were victims of a common policy or plan that violated the law."
More specifically, plaintiff claims she is a victim of defendants' policy to pay only time and a half
In support of this claim, she submits pay stubs showing that, throughout the relevant period, she was paid a regular rate of between $10.38 and $11.15 an hour; but consistently paid overtime at a rate of only $13.13 per hour. (Carrasco Decl., Ex. A.) She further submits her own sworn declaration that she "was not paid time and one half for my overtime hours worked after January 1, 2015" (Carrasco Decl. ¶ 5) as well as a declaration from Marie Bellegarde stating that she, too, "was not paid full time and one half for [her] overtime hours." (Bellegarde Decl. ¶ 6.) Defendants submit pay stubs for both Carrasco and Bellegarde, including pay stubs from September and October 2015, which show that Bellegarde received a regular pay rate of either $10 or $11 per hour, but overtime only at $13.13 per hour. (Zelman Decl., Ex. H.)
Both Carrasco and Bellegarde's sworn declarations state that "[d]efendant hired at least 40 similar health home aides/maids, who also were not paid their overtime at the full time and one half rate." (Carrasco Decl. ¶ 23; Bellegarde Decl. ¶ 18.)
Defendants' primary argument is that the DOL Regulation did not take effect until October 13, 2015. Thus, they maintain that a collective action is not warranted, since: "[f]or at least some of the Collective Action Period, July 24, 2014 to October 13, 2015 . . . a fact intensive analysis will have to be undertaken in order to determine whether the HHAs at issue are subject to the companionship exemption." (Defs.' Opp. at 16.) The Court disagrees.
As a preliminary matter, while the Collective Action Period begins July 24, 2014, the specific FLSA Collective that plaintiff seeks to certify is for "Employees Not Paid Time and One Half for Overtime
Thus, the Court finds that plaintiffs have met the light burden required at this stage, and therefore certifies a § 216(b) Collective of "Employees Not Paid Time and One Half for Overtime after January 1, 2015."
In order to certify a Rule 23 class, the party seeking certification must demonstrate by a preponderance of the evidence that she has met both the Rule 23(a) prerequisites to certification and also the requirements of one of the 23(b) subsections.
Pursuant to Rule 23(a), a plaintiff seeking certification must demonstrate numerosity, commonality, typicality, and adequacy of representation. As to numerosity, plaintiff alleges that defendants have failed to pay "at least 40" other HHAs the appropriate rate of overtime between January 1, 2015 and October 13, 2015. Defendants do not challenge this assertion. Thus, the Court finds that numerosity is established.
Plaintiff's allegations of commonality, typicality, and adequacy are simple, strong, and virtually unchallenged. As to commonality, plaintiff presents a common question for resolution: "whether defendants paid time and one half the wage rate for overtime." As to typicality, plaintiff argues that she was subjected to the common policy and does not assert any individualized defenses. As to adequacy of representation, plaintiff states that she has "adequate personal knowledge of the essential facts of the case," and that her interest, collecting unpaid wages, is not antagonistic to other members of the class. She also attaches a biography of her attorney, William C. Rand. (ECF No. 20, Rand Decl., Ex. C.) Mr. Rand has been practicing law since 1992, is a graduate of Harvard College and Fordham Law School, and has handled more than 100 FLSA cases, including at least six class action FLSA lawsuits. (
Defendants do little to answer any of plaintiff's assertions under Rule 23(a) as to their overtime policy. Rather, they rely on their statement, already discussed above, that the analysis of the overtime claims requires an "individual fact intensive" analysis. They provide no specific argument or factual materials relating to numerosity, commonality, typicality, or adequacy. Because the Court finds plaintiff's showing strong and clear, as well as essentially uncontroverted, it finds that plaintiff has satisfied the 23(a) requirements.
In order to maintain a Rule 23(b)(3) damages class, plaintiff must establish both that "questions of law or fact common to class members predominate" and also that "class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).
Here, plaintiff asserts that both predominance and superiority are present. She states that the main legal issue—whether the defendants violated New York state law by not paying time and one half the regular rate for overtime hours—is subject to generalized proof. Moreover, she asserts that a class action is the superior method for resolution, stating that one-time resolution as to defendants' liability for overtime in the challenged period will be efficient for all parties. Defendants, in answer, merely regurgitate their argument that the DOL Regulation was not in force until October 13, 2015, and thus that individual issues of fact as to who qualifies for the exemption predominate.
Because, as stated above, this Court finds that the DOL Regulation went into effect on January 1, 2015, the Court disagrees and finds that common questions predominate over individualized ones for the challenged period—January 1, 2015 through October 13, 2015.
Therefore, the Court certifies a New York class of employees who were not paid time and one half for overtime after January 1, 2015.
Plaintiff also moves to certify a New York class of employees not paid a full twenty-four hours for twenty-four hour shifts.
In support of class certification, plaintiff points to the same factors enumerated above. Defendants argue that "the NYDOL Opinion Letter . . . govern[s] interpretation of NYLL's minimum wage provisions" and that, therefore, the only way plaintiff could establish a class is by showing that:
(Defs.' Opp. at 17-18.)
Here, the Court agrees with defendants. As discussed above, the Court finds that the NYDOL Opinion letter is deserving of deference. As such, an employee should only be paid twenty-four hours if she, in fact, is not receiving the appropriate meal and sleep breaks. As a result, individualized and not common questions predominate—and thus, class action is not the superior method of adjudication for the 24 Hour Claims. The Court therefore DENIES class certification on this issue.
Plaintiff proposes several other collectives and classes. For varying reasons, the Court DENIES certification for each one. The Court briefly summarizes below.
Plaintiff moves to certify both a FLSA Collective and a New York class for "employees paid less than the legally required minimum of 13 hours for their 24 hour shifts." (ECF No. 21, Pl.'s Mem. in Supp. at 3). She alleges that "Defendants had a policy to pay home health aides for only 12 hours of their 24 hour shifts." (Id.) In support, she attaches Bellegarde's pay stubs, indicating that Bellegarde was frequently paid for twelve hour shifts. (Bellegarde Decl., Ex. A.) Bellegarde's sworn declaration, however, does
Furthermore, in defendants' opposition, defendant Zelman states that "Bellegarde worked 12 hour shifts as an HHA." (Zelman Decl. ¶ 17.) Plaintiff fails to address this in her reply, and furthermore she revises her proposed classes and collectives, omitting the Under 13 Collective and Class, without stating a reason.
In light of the above, the Court does not find by a preponderance of the evidence that defendants had a policy to pay less than the required thirteen hours for twenty-four hour shifts. Accordingly, plaintiff's motion to certify a FLSA collective and New York state class of those paid less than thirteen hours is DENIED.
Plaintiff proposes a New York state class of "employees paid less than the minimum wage under the Wage Parity Act." (Pl.'s Mem. in Supp. at 4.) She claims that "defendants failed to pay minimum wages under the Wage Parity Act." (
The Wage Parity Act ("WPA") required, after March 1, 2014, that HHAs be paid "total compensation" of $14.09 an hour, at least $10 in cash, and up to $2.40 in health care benefits and up to $1.69 in additional compensation—which could include,
Nowhere on the pay stubs submitted by either side is there any indication as to benefits and supplementary income any HHA might be receiving. The pay stubs indicate only base pay rate, with which defendants are in compliance.
Therefore the Court finds no support for the claim that defendants were not in compliance with the WPA; certification on this issue is therefore DENIED.
Finally, plaintiff moves to certify a New York state class of "employees who did not receive proper wage theft prevention notices." (Pl.'s Mem. in Supp. at 4.) She states that "[d]efendant failed to provide accurate Wage Theft Prevention Act notices as their notices and payroll did not correctly identify the rate being paid to the home health aides and did not indicate the correct hours worked." (
The New York Wage Theft Prevention Act, N.Y.L.L. § 195(1)(a), requires every employer to "provide his or her employees, in writing in English and in the language identified by each employee as the primary language of such employee, at the time of the hiring, and or on before February first of each subsequent year of the employee's employment with the employer, a notice containing the following information: the rate or rates of pay and basis thereof . . . ."
In response, defendants attach the relevant Wage Theft Prevention Act ("WTPA") notices. (Zelman Decl., Exs. G, I.) Plaintiff argues in reply that "defendants' notice signed by Carrasco falsely stated her hourly rate as $10 per hour when her paystubs indicated it was $11.15 per hour." (ECF No. 25, Pl.'s Reply at 6.) This argument is weak; Carrasco's WTPA notice was given to her on April 29, 2014, and states an hourly rate of $10 per hour, while the paystubs are from the period ranging from August 2015 through February 2016, in which her pay rate was $11.15 per hour. The Court will not conclude that WTPA notices were incorrectly provided as a policy based on a single notice given more than a year before any attached pay stubs, particularly when such notices are required to be given on an annual basis.
Finally, plaintiff argues that the defendants violated the WTPA when they failed to provide Notice in Spanish. For this she relies on her own declaration that Spanish is her primary language. (Carrasco Decl. ¶ 32.) The WTPA requires notice in both English "and the language identified by each employee as [her] primary language." N.Y.L.L. § 195(1)(a). The WTPA Notice has a box for each employee to check stating either that: 1) English is her primary language; or 2) English is not her primary language, but she will accept the notice in English because the NYDOL doesn't make a form in her language. In this case, neither box was checked. Rodriguez and Bellegarde neither confirmed nor denied that English was their primary language, at least on the exhibits that defendants have offered. On this scant evidentiary showing, the Court does not conclude that defendants had a policy of incorrectly providing WTPA notice.
Accordingly, certification of this class is also DENIED.
In sum, the Court both: 1) conditionally certifies a FLSA collective of "employees not paid time and one half for overtime after January 1, 2015;" and 2) certifies a New York state Rule 23(b)(3) class of "employees not paid time and one half for overtime after January 1, 2015." The Court denies certification to any other proposed classes and collectives.
The Court hereby ORDERS that, consistent with the rulings above, the parties confer on two forms of notice: 1) one for the class pursuant to § 216(b); and
2) for the class pursuant to Rule 23,
Following the Court's approval of the notices, notice shall be sent
For the reasons discussed above, plaintiff's motion is GRANTED in part and DENIED in part. The Clerk of Court is instructed to terminate the motion at ECF No. 17.
SO ORDERED.
