United States District Court, S.D. Ohio, Eastern Division
Vascura, Magistrate Judge.
OPINION AND ORDER
MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT.
Latesha Brittmon ("Plaintiff'), individually and on
behalf of all similarly-situated individuals, brings claims
under the Fair Labor Standards Act ("FLSA"), 29
U.S.C. § 216(b), and various Ohio laws against
Defendants Upreach, LLC ("Upreach"), Melissa
Gourley ("Gourley"), and Beth Hunter
("Hunter") (collectively, "Defendants")
to recover unpaid overtime wages. Before the Court is
Plaintiffs Motion for Conditional Certification and
Court-Supervised Notice to Potential Opt-In Plaintiffs, ECF
No. 4; Defendants' 12(b)(6) Motion to Dismiss, ECF No. 6;
Plaintiffs Motion for Leave to File a Sur-Reply
Instanter, ECF No. 12; and Plaintiffs Motion to Toll
the Statute of Limitations for Potential Opt-In Plaintiffs,
ECF No. 14. The latter three motions have been fully briefed
and are ripe for review. For the reasons explained below, the
Court DENIES Defendants' Motion to
Dismiss, DENIES Plaintiffs Motion for Leave
to File a Sur-Reply, and DENIES Plaintiffs
Motion to Toll the Statute of Limitations.
the Court GRANTS in part and DENIES in part
Plaintiffs Motion for Conditional Certification and
is a home care staffing agency that employs direct care
workers for the developmentally disabled in need of
assistance. Gourley is Chief Executive Officer, and Gourley
and Hunter are co-owners, of Upreach.
was jointly employed by Defendants as a Support Specialist
from approximately February 2015 to approximately July 2016.
As a Support Specialist, Plaintiff provided companionship
services, domestic services, home care, and other in-home
services for individuals with developmental disabilities.
Plaintiff alleges that she and similarly situated employees
regularly worked more than forty hours per workweek but that,
from approximately January 1, 2015, to October 13, 2015, they
were not paid one and one-half times their regular rate for
each hour worked over forty.
seeks remuneration for unpaid overtime wages on behalf of the
following proposed class of FLSA opt-in plaintiffs and Rule
23 putative class members:
All current and former employees of Defendants who have
worked as direct support professionals, support associates,
caregivers, home health aides, or other employees who
provided companionship services, domestic services, home
care, and/or other in-home services, and who worked over 40
hours in any workweek beginning January 1, 2015 through
October 13, 2015, and were not paid time and a half for the
hours they worked over 40.
Compl. ¶¶ 31, 37, ECF No. 1. Plaintiff alleges that
the proposed class includes upwards of around 250 similarly
situated individuals who worked as, for example, direct
support professionals, support specialists, caregivers, home
health aides, and others who provided companionship services,
domestic services, home care, and other in-home services for
Defendants during the relevant time period. Id. at
spawned this action, and many others like it, is a change to
Department of Labor ("DOL") regulations defining
the categories of employees exempted from the FLSA's
overtime protections. Subject to specific exceptions, the
FLSA generally requires covered employers to pay overtime
compensation in the amount of 150% of the employee's
regular pay rate for all hours worked in excess of forty
hours per week. 29 U.S.C. §§ 206(a), 207(a). In
1974, the FLSA was amended to exempt "domestic
service" employees (that is, employees "provid[ing]
companionship services for individuals who (because of age or
infirmity) are unable to care for themselves") from the
FLSA's overtime requirement. 29 U.S.C. § 213(a)(15).
The next year, the DOL adopted implementing regulations that,
in relevant part, included individuals employed by third
parties in its category of exempted employees. 29 C.F.R.
§ 552.109(a), (c) (2014).
2013, the DOL reversed course, adopting a new rule (the
"Final Rule" or "Rule") that brought
domestic service employees of third-parties within the
protections of the FLSA. 29 C.F.R. § 552.6 (2016). The
Final Rule was scheduled to become effective on January 1,
2015. Id.; see also 80 Fed. Reg. 65646 (Oct. 27,
to its effective date, however, a group of trade associations
representing third-party employers of home care workers filed
a lawsuit challenging the regulation under the Administrative
Procedure Act. In December 2014, the D.C. District Court
vacated the Final Rule based on its finding that the Rule
-""' was an unreasonable interpretation of
federal law and was arbitrary and capricious. Home Care
Ass'n of Am. v. Weil, 76 F.Supp.3d 138, 147-48
(D.D.C. 2014). The DOL appealed, and on August 21, 2015, the
D.C. Circuit Court reversed the district court's ruling
and vacatur of the regulation. Home Care Ass'n of Am.
v. Weil, 799 F.3d 1084, 1097 (D.C. Cir. 2015).
Thereafter, the DOL issued guidance stating that it would not
institute enforcement proceedings for violations of the Final
Rule until thirty days after the Court of Appeals issued its
mandate. 80 Fed. Reg. 55029 (Sept. 14, 2015). The Court of
Appeals issued its mandate on October 13, 2015, and the DOL
issued another guidance indicating it would not bring
enforcement actions for violations of the Rule until November
12, 2015. 80 Fed. Reg. 65646, 65647 (Oct. 27, 2015). The
effect of these court decisions on the Final Rule's
effective date is at the heart of this lawsuit.
DEFENDANTS' MOTION TO DISMISS
Standard of Review
survives a motion to dismiss pursuant to Rule 12(b)(6) if it
"contain[s] sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "The plausibility standard is not akin to a
'probability requirement, ' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully." Id. A complaint's
"[t]actual allegations must be enough to raise a right
to relief above the speculative level, on the assumption that
all of the complaint's allegations are true."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007) (internal citations omitted).
must "construe the complaint in the light most favorable
to the plaintiff." Inge v. Rock Fin. Corp., 281
F.3d 613, 619 (6th Cir. 2002). In doing so, however,
plaintiff must provide "more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S.
at 555; see also Iqbal, 556 U.S. at 678
("Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice."); Ass'n of Cleveland Fire Fighters v.
City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007).
"[A] naked assertion ... gets the complaint close to
stating a claim, but without some further factual enhancement
it stops short of the line between possibility and
plausibility ...." Twombly, 550 U.S. at 557.
beyond the mere possibility of [relief] must be alleged"
Id. at 557-58 (internal citations omitted).
Motion to Dismiss hinges on one crucial unsettled question of
law: the effective date of the DOL's Final Rule.
Plaintiff alleges that Defendants are liable to their
domestic services employees for all unpaid overtime beginning
January 1, 2015, the Rule's scheduled date of
effectiveness. See 29 C.F.R. § 552.6.
Defendants, on the other hand, contend that the Final Rule
was not effective until at least October 13, 2015, the date
of the D.C. Circuit Court's mandate.
circuit court has ruled on the Final Rule's effective
date, and the district courts to have done so have reached
conflicting conclusions. The analysis begins with the general
principle that judicial decisions, as opposed to statutes and
regulations, apply retroactively. See Harper v. Va.
Dep't of Taxation,509 U.S. 86, 97 (1993). According
to that principle, when a court "applies a rule of
federal law to the parties before it, that rule is the
controlling interpretation of federal law and must be given
full retroactive effect in all cases still open on ...