United States District Court, S.D. Ohio, Western Division
BOBBI LEE, individually and on behalf of all others similarly situated Plaintiff,
CAREGIVERS FOR INDEPENDENCE, LLC, Defendants.
OPINION AND ORDER
Michael R. Barrett, Judge United States District Court
matter is before the Court on: Plaintiff's Motion to
Conditionally Certify a FLSA Collective Action, Approve
Notice and Expedited Consideration (Doc. 16) and the
responsive memoranda thereto (Doc. 24); and Defendants'
Motion for Judgment on the Pleadings (Doc. 21),
Plaintiff's memorandum in opposition (Doc. 23), and
Defendants' reply (Doc. 28). Plaintiff also filed a
Motion for Leave to File Supplemental Authority in Opposition
to Defendants' Motion for Judgment on the Pleadings (Doc.
29). Defendants responded (Doc. 30), and Plaintiff filed a
Notice of Supplemental Authority (Doc. 32). Most recently,
Plaintiff filed an Unopposed Motion for Leave to File
Supplemental Authority in Opposition to Defendants'
Motion for Judgment on the Pleadings and in Support of
Plaintiff's Motion for Conditional Certification (Doc.
33). This matter is now fully briefed and ripe for review.
initial matter, the Court GRANTS Plaintiff's motions for
leave to file supplemental authority (Docs. 29, 33).
Bobbi Lee filed a complaint on behalf of herself and others
similarly situated against Defendants Caregivers for
Independence, LLC, James Couch, Phyllis Couch, and James
Couch, II, (“Defendants') seeking unpaid overtime
wages under the Fair Labor Standards Act (“FLSA”)
29 U.S.C. § 201 et seq., Ohio Minimum Fair Wage
Standards O.R.C. § 4111 et. seq., and the Ohio
Prompt Pay Act O.R.C. § 41135.15. Plaintiff filed this
lawsuit as a collective action under Section 216(b) of the
FLSA on behalf of herself and other similarly-situated
workers employed by Defendants who were paid hourly. (Doc.
is a former employee of Caregivers for Independence, LLC
(“Caregivers”) - an entity that provides in-home
personal healthcare in Hamilton, Ohio. Plaintiff worked for
Caregivers from approximately 2010 to September 29, 2015.
(Doc. 26 at ¶ 3). Specifically, she provided
companionship services to elderly persons and other persons
who, because of illness, injury, or disability, required
assistance for themselves. (Id. at ¶ 1). While
Plaintiff's hours varied from week to week, it is
undisputed that during some work weeks, she worked more than
40 hours. (Docs. 21, 23). As explained more fully herein,
Plaintiff brings this action pursuant to the recent changes
in the overtime pay requirements imposed by the FLSA specific
to companionship employees. 29 U.S.C. § 201 et
the FLSA requires employers to pay their employees time and
one-half their regular rates of pay for any hours worked in
excess of 40 each week. In 1974, however, Congress amended
the FLSA to exempt employers from paying domestic service
employees overtime pay. 29 U.S.C. § 213(a). The
exemption included “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. §
213(a)(15). The following year, the Department of Labor
(“DOL”) published regulations which provided
guidance in defining “companionship
services” and “third party
employment.” 29 C.F.R. § 552.6; 29 C.F.R. §
552.109. Thus, under the rules, employers like Caregivers
were exempt from paying employees like Plaintiff overtime.
October 2013, The DOL issued a Final Rule amending the
companionship services exemption regulations. See
Application of the Fair Labor Standards Act to Domestic
Service, 78 Fed. Reg. 60454, 60455 (Oct. 1, 2013). The new
regulations modernized the definition of companionship
services, and significant to the instant action, removed the
exemption applying to caregivers who were employed by
third-party employers. Id. This change effectively
precluded third-party employers, such as Caregivers, from
claiming the exemption under the FLSA's overtime
provisions for companionship service employees. See
29 C.F.R. § 552.109(a) (hereinafter referred to as
“Regulation”) ("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."). In other words,
under the Regulation, employees like Plaintiff are entitled
to overtime pay. The DOL chose January 1, 2015 as the
effective date of the Regulation, recognizing the rule would
impact a diverse group of interested parties. See
Application of the Fair Labor Standards Act to Domestic
Service, 78 Fed. Reg. at 60494-95.
the Regulation went into effect, the United States District
Court for the District of Columbia issued an order finding
the DOL exceeded its rule-making authority in eliminating the
FLSA exemption for home healthcare workers and vacated the
Regulation nationwide. Home Care Ass'n of
Am. v. Weil, 76 F.Supp.3d. 138 (D.D.C. 2014); Home
Care Ass'n of Am. v. Weil, 76 F.Supp.3d 123 (D.D.C.
2015). In August 2015, the Court of Appeals for the District
of Columbia reversed the district court's decision, and
found the Regulation valid. Home Care Ass'n of Am. v.
Weil, 799 F.3d 1084 (D.C. Cir. 2015). Subsequently, the
DOL issued guidance stating that it would not institute
enforcement proceedings for violations of the Regulation
until 30 days after the Court of Appeals issued its mandate.
See 80 Fed. Reg. 55029 (Sept. 14, 2015). The Court
issued its mandate on October 13, 2015. The DOL then
indicated that it would not bring enforcement actions for
violations of the Regulation prior to November 12, 2015.
See Application of the Fair Labor Standards Act to
Domestic Service: Dates of Previously Announced 30-Day Period
of Non-Enforcement, 80 Fed. Reg. 65646 (Oct. 27, 2015).
alleges she and other similarly situated employees are
entitled to overtime pay beginning on January 1, 2015 - the
initial effective date of the Regulation. She moves for
conditional class certification. In response, Defendants
filed a motion for judgment on the pleadings. The issue
before the Court is when the Regulation became enforceable,
or put another way, what the “effective date” of
the Regulation is. Because it is dispositive of the case, the
Court addresses Defendants' motion for judgment on the
Motion for Judgment on the Pleadings
motion for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c) is analyzed using the same standards
applicable to a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Tucker v. Middleburg-Legacy Place,
LLC, 539 F.3d 545, 549 (6th Cir. 2008) (citing
Sensations, Inc. v. City of Grand Rapids, 526 F.3d
291, 295 (6th Cir. 2008)). “[T]o survive a motion to
dismiss[, ] a complaint must contain (1) ‘enough facts
to state a claim to relief that is plausible, ' (2) more
than ‘a formulaic recitation of a cause of action's
elements, ' and (3) allegations that suggest a
‘right to relief above a speculative level.'”
Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478,
488 (6th Cir. 2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007)). A claim has facial
plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). Although the
plausibility standard is not equivalent to a
“‘probability requirement, ' . . . it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678 (quoting
Twombly, 550 U.S. at 556).
reviewing a motion to dismiss, the Court must “construe
the complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Bassett v.
Nat'l Collegiate Athletic Ass'n, 528 F.3d 426,
430 (6th Cir. 2008) (quoting Directv, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). Federal Rule
of Civil Procedure 8(a)(2) requires only “a short and
plain statement of the claim showing the pleader is entitled
to relief.” “Specific facts are not necessary;
the statement need only ‘give the defendant fair notice
of what the . . . claim is ...