“[T]he plaintiffs must show a “strong likelihood” that those employees are similarly situated to the plaintiffs themselves” (emphasis added; citation omitted)
How later courts described this case
- “[T]he plaintiffs must show a “strong likelihood” that those employees are similarly situated to the plaintiffs themselves” (emphasis added; citation omitted)
- “Under the FLSA, if an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for non-payment if the employee fails to follow the established process.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Margie Wesel, on behalf of herself
and all others similarly situated,
Plaintiff, Case No. 2:23-cv-1479
V. Judge Michael H. Watson
Certus Healthcare Management, Magistrate Judge Jolson
LLC,
Defendant.
OPINION AND ORDER
Margie Wesel (“Plaintiff’) sues Certus Healthcare Management, LLC
(“Defendant”) under the Fair Labor Standards Act (“FLSA”) and analogous state
laws. Compl., ECF No. 1. Plaintiff moves for approval of Court-facilitated notice
to potential opt-in plaintiffs. ECF No. 53. For the following reasons, the motion is
GRANTED IN PART.
I. FACTS
Defendant operates at least twenty senior care facilities in Ohio and
employs hundreds of care workers at these facilities. Compl. ff] 15-16, ECF No.
1. During the relevant times, Plaintiff worked for Defendant as a direct care
worker, specifically a nursing assistant. /d. {| 2.
Plaintiff alleges that Defendant failed to properly pay overtime wages to
her and other direct care workers because, among other reasons: (1) Defendant
automatically deducted a thirty-minute unpaid meal break each day, but
employees could not actually take a thirty-minute break; and (2) Defendant did
not count certain bonuses in employee’s regular pay rate and, as a result, did not
properly calculate the overtime rate. /d. {J 3-11.
Plaintiff now asks the Court to approve notice to the following group of
people:
All current and former hourly, non-exempt direct care employees of
Defendant who were paid for at least forty (40) hours in any workweek
and either were not compensated for a meal break or received one or
more forms of additional remuneration beginning May 1, 2020 and
continuing through the final disposition of this case.
Mot. 1, ECF No. 53.
ll. STANDARD OF REVIEW
The Sixth Circuit recently clarified the standard for court-facilitated notice in
an FLSA case:
for a district court to facilitate notice of an FLSA suit to other
employees, the plaintiffs must show a “strong likelihood” that those
employees are similarly situated to the plaintiffs themselves. . . . That
standard requires a showing greater than the one necessary to create
a genuine issue of fact, but less than the one necessary to show a
preponderance. The strong-likelihood standard is familiar to the
district courts; it would confine the issuance of court-approved notice,
to the extent practicable, to employees who are in fact similarly
situated; and it would strike the same balance that courts have long
struck in analogous circumstances.
Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003, 1011 (6th Cir. 2023)
(citation omitted).
To determine whether the putative opt-ins are similarly situated to Plaintiff,
the Court considers: “(1) the factual and employment settings of the individual
Case No. 2:23-cv-1479 Page 2 of 7
plaintiffs; (2) the different defenses to which the plaintiffs may be subject; and
(3) the degree of fairness and procedural impact of’ proceeding collectively
based on representative evidence. Pierce v. Wyndham Vacation Resorts, Inc.,
922 F.3d 741, 745 (6th Cir. 2019) (cleaned up). Importantly, the putative
plaintiffs need not be “identically situated” to Plaintiff to be similarly situated.
Monroe v. FTS USA LLC, 860 F.3d 389, 402 (6th Cir. 2017) (internal quotation
marks and citation omitted). The FLSA standard for similarly situatedness is less
stringent than Rule 23(b)(3)’s standard, which requires common issues to
predominate over individual issues. O’Brien v. Ed Donnelly Enter., Inc., 575 F.3d
567, 584-85 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald Co.
v. Gomez, 577 U.S. 153 (2016); see also Monroe, 860 F.3d at 402.
lll. ANALYSIS
Plaintiff moves for court-facilitated notice. Plaintiff alleges that Defendant
routinely failed to properly pay overtime to her and other direct care workers by:
(1) automatically deducting a thirty-minute unpaid meal break each day, which
‘employees could not actually take (“meal break practice”); (2) excluding certain
bonuses from employee’s regular pay rate and, as a result, improperly
calculating the overtime rate (“bonus practice’).
Defendant argues that court-facilitated notice is unwarranted because it did
not employ Plaintiff or the potential opt-ins and because Plaintiff has not
demonstrated that she and the potential opt-ins were subject to an unlawful
policy or practice.
Case No. 2:23-cv-1479 Page 3 of 7
Upon review, the Court finds that Plaintiff has carried her burden of
showing a “strong likelihood” that she and the potential opt-ins are similarly
situated. Clark, 68 F.4th at 1011 (6th Cir. 2023) (citation omitted). In support of
her claims, Plaintiff offers her own declaration stating facts which support that
she was underpaid for overtime hours worked because of the meal break and
bonus practices. See generally, Wesel Decl., ECF No. 53-1. Plaintiff also
submitted sworn declarations from other direct care workers who worked at
several of Defendant's facilities. These additional declarations support that the
declarants were not properly paid overtime because of the meal break practice,
the bonus practice, or both, and that both practices were company-wide policies
or practices. See generally, Benson Decl., ECF No. 53-2; Brown Decl., ECF No.
53-3; Morgan Decl., ECF No. 53-4; O’Neill Decl., ECF No. 53-5; Ler Decl., ECF
No. 53-6; Pope Decl., ECF No. 53-7; Croo Decl., ECF No. 53-8; Winegardner
Decl., ECF No. 53-9; Webb Decl., ECF NO. 53-10; Noe Decl., ECF No. 53-11;
Swigert Decl., ECF No. 53-12; Weed Decl., ECF No. 53-13; Parrill Decl., ECF
No. 53-14; Efts Decl., ECF No. 53-15; Street Decl., ECF No. 53-16; Oung Decl.,
ECF No. 53-17.
These allegations and declarations show a strong likelihood that Plaintiff
and the potential opt-ins are similarly situated. Plaintiffs and the declarants’
statements show that there was significant overlap in their factual and
employment settings, that Defendant would be unlikely to have significantly
different defenses against different plaintiffs, and that proceeding collectively will
Case No. 2:23-cv-1479 Page 4 of 7
be efficient and fair for the parties and the Court. Pierce, 922 F.3d at 745
(citation omitted). Thus, the Court concludes that Plaintiff has met the standard
for court-facilitated notice.
Defendant disagrees, arguing that it did not employ Plaintiff and the
potential opt-ins and, alternatively, that its pay practices are lawful. These
arguments fail to persuade because they focus on Plaintiff's likelinood of success
on the merits, not her likelihood of showing the potential opt-ins are similarly
situated. See Clark, 68 F.4th at 1011 (“[T]he plaintiffs must show a “strong
likelihood” that those employees are similarly situated to the plaintiffs
themselves” (emphasis added; citation omitted)). At bottom, Defendant's
arguments are better addressed through a dispositive motion, not at the notice
stage.
Defendant makes only one argument that, at first glance, goes to whether
Plaintiff and the potential opt-ins are similarly situated. Defendant argues that
Plaintiff is not similarly situated to meal-break-practices potential plaintiffs
because, on at least a few occasions, Plaintiff submitted a “time edit form” (the
“Form’) requesting payment for work she performed during a meal break.
According to Defendant, because Plaintiff submitted the Form she lacks a viable
meal-break-practices claims and, thus, is not similarly situated to employees who
did not submit the Form.
This argument falls flat. At its core, this is again a merits argument
because its success turns on the merits of Plaintiffs “meal break practices” claim.
Case No. 2:23-cv-1479 Page 5 of 7
As far as it goes, Defendant is correct that an employer generally may
automatically deduct meal breaks if the employer has a way for employees to
request payment for any time spent working during that break. See White v.
Baptist Mem’! Health Care Corp., 699 F.3d 869, 876 (6th Cir. 2012) (“Under the
FLSA, if an employer establishes a reasonable process for an employee to report
uncompensated work time the employer is not liable for non-payment if the
employee fails to follow the established process.”). As Defendant would apply
that rule here, because Plaintiff could submit a Form to request payment for the
time she worked during meal breaks, Plaintiff does not have a viable claim. Yet
there are exceptions to that general rule. /d. As one example, if an employer
knows that employees regularly work through meal breaks yet still automatically
deducts those breaks, that conduct could be an FLSA violation. See Craig v.
Bridges Bros. Trucking LLC, 823 F.3d 382, 390 (6th Cir. 2016) (citing White, 699
F.3d at 876). Based on Plaintiffs allegations and declaration, this exception may
apply here. In sum, Defendant’s argument requires the Court to weigh
competing merits arguments, which is inappropriate at this stage. Cf Isaacs v.
Landmark Recovery of Louisville, LLC, No. 3:23-CV-00210, 2023 WL 6096730,
at *13 (M.D. Tenn. Sept. 18, 2023) (explaining that the “[C/ark] standard, notably,
does not apply (at this juncture) to the merits of the plaintiff's claim, but only to
the ‘similarly situated’ requirement.”).
Next, the Court considers Plaintiffs proposed notice form and procedure.
Although the Court agrees with Plaintiff that some form of notice is warranted, the
Case No. 2:23-cv-1479 Page 6 of 7
Court has concerns about this notice form and procedure. For example, the
parties disagree about the meaning of “direct care worker,” which suggests that
recipients of the notice may not understand its meaning. In addition, Defendant
argues that the proposed notice does not adequately inform potential opt-in
plaintiffs of possible consequences of participating in this litigation.
All that said, Plaintiffs proposal is a good starting point. The parties are
ORDERED to confer and submit WITHIN FOURTEEN DAYS a joint proposed
definition, notice, and distribution plan. If the parties cannot agree on any aspect
of the same, they may submit a brief position statement, not to exceed five pages
total for all points of disagreement. The parties are DIRECTED to carefully
consider Murphy v. Kettering Adventist Healthcare, No. 3:23-CV-69, 2023 WL
6536893 (S.D. Ohio Oct. 5, 2023) in their discussion and, if they submit a
position statement, are CAUTIONED to avoid making the same arguments
already addressed in Murphy.
IV. CONCLUSION
For these reasons, the Court GRANTS IN PART Plaintiffs motion for
court-facilitated notice. The parties are ORDERED to confer and submit WITHIN
FOURTEEN DAYS a joint proposed definition, notice, and distribution plan.
The Clerk shall terminate ECF No. 53.
IT IS SO ORDERED. ) I Bl Fon
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
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