The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
NELLIE MIGUES CASE NO. 6:19-CV-00976
VERSUS JUDGE JUNEAU
WE CARE HOMES INC ET AL MAGISTRATE JUDGE HANNA
MEMORANDUM RULING
Before the Court is the Plaintiff’s Motion to Conditionally Certify a FLSA
Collective Action, Approve Notice and Expedited Consideration. (Rec. Doc. 9;
Memorandum in Support at Rec. Doc. 12). Defendants, We Care Homes, Inc. and
Kyle Jones, opposed the Motion (Rec. Doc. 13), and Plaintiff replied (Rec. Doc. 16).
Considering the evidence, the law, and the arguments of the parties, and for the
reasons fully explained below, Plaintiff’s Motion is GRANTED.
Factual Background
Plaintiff, Nellie Migues, individually and on behalf of all other similarly
situated current and former employees of Defendants, filed this suit under the Fair
Labor Standards Act against her former employer, We Care Homes, Inc. and Kyle
Jones, We Care’s alleged manager. Plaintiff alleges that she was employed by We
Care as a home health worker1 from September 2018 through June 2019, and that
during that time she worked hours in excess of forty hours per week but was not paid
overtime as required by the FLSA. (Rec. Doc. 1; 9-2, ¶2-3; 12). She further attested
that her We Care supervisor assigned her hours to work with each client and that
because of the nature of the work and the works days scheduled by We Care, she
and other home healthcare workers regularly worked more than forty hours in a
week. (Rec. Doc. 9-2, ¶7-9). She was required to record her time on a standardized
We Care form, which she turned in to We Care. (Rec. Doc. 9-2, ¶10). Plaintiff
asserted that she had “personal knowledge from talking to We Care administrators
and other home health workers that We Care did not pay its home health workers
overtime for hours worked over 40 in a work week,” and that “all home healthcare
workers employed by We Care shared the same job descriptions and performed the
same basic functions.” (Rec. Doc. 9-2, ¶13-14).
Plaintiff filed the instant Motion seeking conditional class certification under
the FLSA authorizing such actions. In support of her Motion, Plaintiff submitted, in
addition to her own affidavit, the affidavits of Ashley Walker and Samantha Migues,
each of whom attested similarly. (Rec. Doc. 9-6 and 9-7).
1 Plaintiff describes the duties of a home health worker as assisting the client with daily
living activities, bathing, peri-care or sponge baths, house cleaning, reminding clients to
take prescribed or over-the-counter medications, and companionship. (Rec. Doc. 9-2, ¶5).
Law and Analysis
The Fair Labor Standards Act (FLSA) obligates employers to pay their
employees over-time rates (one and one-half times of their regular rate of pay) for
hours worked over forty hours per week. 29 U.S.C. §207(a)(1). An employee may
bring a claim for FLSA violations on behalf of himself and other similarly-situated
employees, but the other employees do not become plaintiffs in the action unless and
until they consent in writing, or “opt-in.” 29 U.S.C. §216(b); Sandoz v. Cingular
Wireless LLC, 553 F.3d 913, 915 (5th Cir. 2008).
The remedial nature and purpose of the FLSA “militate strongly in favor of
allowing cases to proceed collectively.” West v. Lowes Home Centers, Inc., No.
6:09-1310, 2010 WL 5582941, at *3 (W.D. La. Dec. 16, 2010), report and
recommendation adopted, No. 6:09-1310, 2011 WL 126908 (W.D. La. Jan. 14,
2011) (quoting Roussell v. Brinker Int'l, Inc., No. H-05-3733, 2008 WL 2714079, at
*24 (S.D. Tex. July 9, 2008)). A collective action affords plaintiffs “the advantage
of lower individual costs to vindicate rights by the pooling of resources. The judicial
system benefits by efficient resolution in one proceeding of common issues of law
and fact....” Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989); Green v.
Plantation of Louisiana, No. 2:10-0364, 2010 WL 5256354, *3 (W.D. La. Nov. 24,
2010), report and recommendation adopted, No. 2:1-0364, 2010 WL 5256348 (W.D.
La. Dec. 15, 2010); Boudreaux v. Schlumberger Technology Corp., No. 6:14-2267,
2015 WL 796602, *2 (W.D. La. Feb. 25, 2015). District courts typically apply the
two-step framework enunciated in Lusardi v. Xerox Corp.2
[C]ollective actions typically proceed in two stages. First, the plaintiff
moves for conditional certification of his or her collective action. The
district court then decides, usually based on the pleadings and affidavits
of the parties, whether to provide notice to fellow employees who may
be similarly situated to the named plaintiff, thereby conditionally
certifying a collective action. Second, once discovery is complete and
the employer moves to decertify the collective action, the court must
make a factual determination as to whether there are similarly-situated
employees who have opted in. If so, the collective action may proceed,
and if not, the court must dismiss the opt-in employees, leaving only
the named plaintiff's original claims.
Sandoz, 553 F.3d at 916, fn. 2 (5th Cir. 2008), citing Mooney v. Aramco
Servs. Co., 54 F.3d 1207, 1213–14 (5th Cir.1995), overruled on other
grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).3
A. Whether conditional certification is warranted.
Plaintiff invokes stage one by seeking conditional certification and urging the
Court to facilitate providing notice to other We Care employees. The standard for
satisfying step one is “fairly lenient.” Mooney, 54 F.3d at 1214. The initial
determination of whether the putative collective members are sufficiently similarly
2 Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987), mandamus granted in part, appeal
dismissed, Lusardi v. Lechner, 855 F.2d 1062 (3rd Cir.1988), vacated in part, modified in
part, and remanded, Lusardi v. Xerox Corp., 122 F.R.D. 463 (D.N.J.1988), aff'd in part,
appeal dismissed, Lusardi v. Xerox Corp., 975 F.2d 964 (3rd Cir.1992).
3 Although the Fifth Circuit has not expressly adopted the foregoing two-step approach for
adjudicating FLSA collective actions, the court has generally not discouraged it. See In re
JPMorgan Chase & Co., 916 F.3d 494, 500, fn. 9 (5th Cir. 2019).
situated to the named plaintiff to proceed collectively is based on “minimal
evidence,” before discovery happens. Id. This Court has further previously
synthesized the law applicable to conditional certification as follows:
At the notice stage, the plaintiff bears the burden of making a
preliminary factual showing that at least a few similarly situated
individuals exist. The plaintiff may satisfy his or her burden through
submission of evidence in the form of pleadings, affidavits[,] and other
supporting documentation. At the notice stage, ‘courts appear to require
nothing more than substantial allegations that the putative class
members were together the victims of a single decision, policy, or plan
infected by discrimination.’ Because the court has minimal evidence,
this determination is made using a fairly lenient standard, and typically
results in conditional certification of a representative class where
potential class members receive notice and the opportunity to opt-in.
The lenient standard requires only substantial allegations that potential
members were together the victims of a single decision, policy, or plan.
Venable v. Schlumberger Ltd. (Schlumberger N.V.), No. 6:16-CV-
00241, 2017 WL 2870400, at *3 (W.D. La. June 5, 2017), report and
recommendation adopted sub nom. Venable v. Schlumberger Ltd., No.
6:16-CV-00241, 2017 WL 2870063 (W.D. La. July 3, 2017). (Internal
quotations and citations omitted.)
“[W]hile the standard at this stage is not particularly stringent, it is by no
means automatic.” Solomon v. Serenity Square, LLC, No. 6:18-CV-1025, 2019 WL
1923672, at *2 (W.D. La. Apr. 29, 2019) (M.J. Whitehurst), citing Lima v. Int'l
Catastrophe Sols., Inc., 493 F. Supp. 2d 793, 798 (E.D. La. 2007) (citing Hipp v.
Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1213 (11th Cir. 2001)). Courts consider
factors such as whether potential plaintiffs were identified; whether affidavits of
potential plaintiffs were submitted; and whether evidence of a wide spread
discriminatory plan was submitted.” Id. citing Stiles v. FFE Transp. Servs, Inc., 2010
WL 935469, at *2 (N. D Tex. Mar. 15, 2010). As a practical matter, most district
courts in this Circuit “require some factual basis to the plaintiff's allegations that a
collective action is warranted before granting notice and conditional certification.”
Id., citing Simmons v. T-Mobile USA, Inc., 2007 WL 210008, at * 4 (S.D. Tex. Jan.
24, 2007). “Unsupported assertions of widespread violations are not sufficient to
meet Plaintiff's burden.” Id. citing Jones v. Yale Enf't Servs., Inc., 2015 WL
3936135, at *1 (E.D. La. June 26, 2015) (quoting Haynes v. Singer Co., Inc., 696
F.2d 884, 887 (11th Cir. 1983)).
In support of her Motion, Plaintiff submits her own affidavit wherein she
attested: 1) she was employed by We Care as a home healthcare worker placed in
clients’ homes with job duties of assisting clients with daily living activities, bathing,
house cleaning, etc.; 2) Her supervisor assigned the hours she was required to work
with each client; 3) Due to the nature of the work and the work days scheduled by
We Care, home healthcare workers, including herself, regularly worked more than
40 hours in a week;4 4) During her employment from September 2018 through June
4 Plaintiff submitted three pay stubs in support of her affidavit; however, only one stub shows
that she worked more than forty hours in any week. See Rec. Doc. 9-3, p. 2, which notes
that Plaintiff worked 82 hours in one two-week period. She also submitted time sheets;
however, none of the submitted time sheets indicate that she worked more than 40 hours
in a week. See Rec. Doc. 9-4.
2019, she was paid “straight time” for all of her hours, including hours over forty,
and that she was not paid overtime; and 5) that she had “personal knowledge from
talking to We Care administrators and other home health workers that We Care did
not pay its home health workers overtime for hours worked over 40 in a work week.”
(Rec. Doc. 9-2).
Plaintiff further submitted the affidavit of Ashley Walker, who similarly
attested that: 1) Her We Care supervisor assigned the hours she was required to work
with each client; 2) Due to the nature of the work and the work days scheduled by
We Care, home healthcare workers, including herself, regularly worked more than
40 hours in a week; 3) During her employment, she was paid “straight time” for all
of her hours, including hours over forty, and that she was not paid overtime; and 4)
that she had “personal knowledge from talking to other home health workers that
We Care did not pay its home health workers overtime for hours worked over 40 in
a work week.” (Rec. Doc. 9-6).
Plaintiff also submitted the affidavit of Samantha Migues, who attested that:
1) Due to the nature of the work and the work days scheduled by We Care, home
healthcare workers, including herself, regularly worked more than 40 hours in a
week; 3) During her employment, she was paid “straight time” for all of her hours,
including hours over forty, and that she was not paid overtime. (Rec. Doc. 9-7).
Defendants contend that Plaintiff does not meet even the lenient threshold for
conditional certification because she failed to present any evidence of others
similarly situated. Specifically, Defendants submitted evidence that Ashley Walker
(Plaintiff’s family member) did not ever work any overtime and that Samantha
Migues (also Plaintiff’s family member) was involved in a scheme with other family
members whereby Samantha Migues would submit false timesheets. (Rec. Doc. 13-
1). According to the affidavit of We Care administrator, Crystal D. Smith-Provost,
after discovering the scheme, We Care audited Samantha Migues’s time sheet and
paid her for the overtime they could reasonably discern that she had actually worked.
(Rec. Doc. 13-1). Finally, Defendants submit that Plaintiff otherwise relies only
upon hearsay, rather than evidence, for the assertion that We Care did not pay
overtime to its home health workers (citing Plaintiff’s Affidavit at Rec. Doc. 9-2,
¶13).
The Court finds that Plaintiff has overcome the minimal burden of conditional
certification. Plaintiff’s affidavit attests that she and other home health care workers
performed similar duties, worked similar hours, and were subject to We Care’s
alleged non-payment of overtime policy. This is sufficient to satisfy the lenient
standard for similarly situated. Although the Court acknowledges Defendants’
evidence regarding Ashely Walker and Samantha Migues, the Court finds that this
evidence is better suited as a defense to Plaintiff’s claims on the merits and for
consideration at the decertification stage. Other courts within this District routinely
grant initial certification upon similar facts. See e.g. Richard v. Flower Foods, Inc.,
222 F. Supp. 3d 516, 525 (W.D. La. 2016) (M.J. Whitehurst) (noting that the
defendants’ challenge to initial certification based upon the plaintiffs’ true
employment status went to the merits and was more appropriately considered at the
decertification stage). See also Defrese-Reese v. Healthy Minds, Inc., No. CV 18-
1134, 2018 WL 6928920, at *3 (W.D. La. Dec. 19, 2018) (M.J. Kay), report and
recommendation adopted, No. CV 18-1134, 2019 WL 97042 (W.D. La. Jan. 3,
2019); Brown v. Body & Soul Servs., Inc., No. CV 16-0824, 2017 WL 2198192, at
*4 (W.D. La. May 2, 2017) (M.J. Hays), report and recommendation adopted, No.
CV 16-0824, 2017 WL 2198623 (W.D. La. May 18, 2017). Accordingly, the Court
grants Plaintiff’s Motion for Conditional Certification.
B. Proposed Class Definition
Plaintiff proposes the following class definition:
All current and former home healthcare workers employed by We Care
Homes, Inc. and/or Kyle Jones who were not paid overtime for all hours
worked over forty (40) in a workweek within the last three (3) years.
(Rec. Doc. 12, p. 5).
Defendants object to Plaintiff’s proposed class definition insofar as it extends
to those employed during the prior three years, rather than the prior two years, based
upon 29 U.S.C. §255(a). §255(a) mandates a limitations period of two years, or three
years for willful violations. “[C]ourts in this District have ordered that FLSA
collective action notices include all persons employed up to three years before the
date of the complaint.” Murillo v. Berry Bros Gen. Contractors Inc., No. 6:18-CV-
1434, 2019 WL 4640010, at *5 (W.D. La. Sept. 23, 2019) (M.J. Whitehurst), citing
cases. Thus, the Court agrees that the scope of the proposed notice may extend to
employees for the prior three years, even without evidence of willful violations at
this initial stage. The Court therefore approves Plaintiff’s proposed class definition.
C. Notice
Having found that conditional certification is proper in this case, the Court
turns to the appropriate notice procedure. “To keep the opt-in process efficient,
district courts ‘have discretion’ to ‘facilitat[e] notice to potential plaintiffs.’” In re
JPMorgan Chase & Co., 916 F.3d 494, 500 (5th Cir. 2019), citing Hoffmann-La
Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989).
Plaintiff urges the Court to order Defendants to produce the names, addresses,
phone numbers, identification numbers, and email addresses of its employees over
the last three years, and further to produce the dates of birth and last four digits of
Social Security numbers for those whose notice is returned as undeliverable. (Rec.
Doc. 12, p.13-14). Plaintiff further seeks permission to call any employees whose
mail is returned as undeliverable for the purpose of obtaining their current addresses.
(Rec. Doc. 12, p. 16). Plaintiff submits that she should be permitted to 1) disseminate
notice by mail (with permission to re-mail if the notice is returned as undeliverable);
2) email notice; 3) send postcard reminders before the end of the opt-in period; 4)
make reminder calls to those who have not responded to the mailing of the initial
notice before the end of the opt-in period; and 5) that Defendants be ordered to post
the notice for sixty days in a conspicuous place in their offices. (Rec. Doc. 12, p. 17;
22). Plaintiff last proposes a deadline of seven days from an order approving notice
for Defendants to produce employees’ information, fourteen days from the order for
Plaintiff’s counsel to mail and email notice, sixty days for employees to return their
signed consent forms, and thirty days from the mailing of notice for plaintiff’s
counsel to send reminder postcards and emails. (Rec. Doc. 12, p.20-21).
Defendants oppose Plaintiff’s requested notification procedures as
unnecessary and improper activities which could “suggest that the Court encourages
recipients to join this litigation and authorizes aggressive direct marketing.” (Rec.
Doc. 13, p. 19). Defendants specifically object to telephonic and email notifications
as improper direct communication with Defendant’s employees and overreaching
the traditional notice requirement by U.S. first class mail. Both Plaintiff and
Defendants cite district court cases from across the country in support of their
positions.
Another division in this Court has before ordered an FLSA defendant
employer to provide employees’ names, addresses, telephone numbers, dates of birth
and last four digits of Social Security numbers and further approved a notice period
of sixty days. Richard v. Flower Foods, Inc., 222 F.Supp.3d at 527. This Court
likewise finds the forgoing parameters appropriate. Further, like the court in
Richard, the Court does not agree that Plaintiff’s counsel should be permitted to
provide reminders. See id, relying upon Roberts v. S. B. Southern Welding, LLC, No.
3:14–CV–3617–B, 2015 WL 8773610, at *3 (N.D. Tex. Dec. 15, 2015) for the
proposition that reminder notices would be unnecessary and could potentially be
interpreted as encouragement by the court to opt into the lawsuit. Rather, the Court
finds that requiring Defendants to place notice in a conspicuous place at its office
would be an efficient and cost-effective means of dissemination of notice. See id.
This Court will also allow notice by email only in the event mailed notice is
returned as undeliverable. See Murillo, 2019 WL 4640010, at *6. See also Dean v.
Akal Sec., Inc., No. 1:17-CV-00543, 2018 WL 814627, at *1 (W.D. La. Feb. 9, 2018)
(M.J. Perez-Montes), noting that the court had previously authorized notice by mail
or email. The Court does not find that telephone calls are appropriate.
Defendants object to the substance of Plaintiff’s proposed notices, arguing
that the notices should “mention the possibility that the collective action may be
decertified and that the potential claimants may have to litigate their claims
individually. (Rec. Doc. 13, p. 22). Defendants further request the notice include
the following disclosure: “If you do not prevail on your claim, court costs and
expenses may possibly be assessed against you.” (Rec. Doc. 13, p. 22). Another
division of this Court has before considered similar objections:
While courts are divided on objection three—whether notice
about potential costs to the plaintiffs must be included—courts in this
district have denied its inclusion. See, e.g., Reyes v. Quality Logging,
Inc., 52 F. Supp.3d 849, 853-54 (S.D. Tex. 2014) (“the general
authority on this question is decidedly split”). In Quality Logging the
court found that such language is “unnecessary and potentially
confusing.” Id. citing Sexton v. Franklin First Fin., Ltd., 2009 WL
1706535, at *12 (E.D.N.Y. 2009) and Guzman v. VLM, Inc., 2007 WL
2994278, at *8 (E.D.N.Y. 2007). Given the involvement of likely
unsophisticated opt-in plaintiffs in this case, the undersigned follows
the approach of cases like Quality Logging in recognizing that the
disproportionate “in terrorem effect” of providing such notice could
“outweigh[ ] the likelihood” such costs will significantly impact the
instant case. Id. Thus, the joint notice does not need to contain
references to counterclaims or court costs, but it is the responsibility of
class counsel to render class members appropriate advice on such
matters.
Murillo, 2019 WL 4640010, at *6.
This Court agrees and will not require the notice to include statements
pertaining to potential decertification or assessment of court costs; however, the
Court expects class counsel to advise Plaintiffs appropriately. Therefore, the Court
approves Plaintiff’s proposed Notice of Collective Action Lawsuit at Rec. Doc. 9-8.
The Court likewise approves Plaintiff’s proposed email notification at Rec. Doc. 9-
9 only to the extent that the email will be sent to those individuals whose mail is
returned as undeliverable. As noted above, the Court does not approve of reminders.
Finally, Defendants object to Plaintiff’s proposed timeline as unreasonably
short. Rather than seven days to produce employee information, Defendants seek
twenty-one days. In reply, Plaintiff does not object to Defendants’ proposed twenty-
one day deadline, provided that the Court likewise extends the subsequent deadline
for Plaintiff to disseminate notice. (Rec. Doc. 16, p.9). Thus, the Court holds that
Defendants have twenty-one days to produce employees’ names, addresses, phone
numbers, email addresses, dates of birth, and last four digits of Social Security
numbers. Plaintiffs shall have fourteen days from the receipt of the information from
Defendants to disseminate the approved notice.
Conclusion
For the reasons discussed herein, Plaintiff’s Motion to Conditionally Certify
FLSA Collective Action, Approve Notice and Expedited Consideration (Rec. Doc.
9) is GRANTED. Defendants shall have twenty-one (21) days from the date of this
ruling to provide names, addresses, phone numbers, email addresses, dates of birth,
and last four digits of Social Security numbers for current and former We Care
employees of the last three years. Plaintiff shall have fourteen (14) days from receipt
of the employee information to disseminate the approved notice at Rec. Doc. 9-8.
THUS DONE in Chambers, Lafayette, Louisiana on this 29" day of October,
2019. hie Z-
PATRICK J. HAN
UNITED STATES MAGISTRATE JUDGE
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