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Rembert v. A Plus Home Health Care Agency LLC

United States District Court, S.D. Ohio, Eastern Division

May 1, 2018

Christina Rembert, on behalf of herself and others similarly situated Plaintiff,
v.
A Plus Home Health Care Agency LLC, et al., Defendants.

          Deavers, Judge.

          OPINION AND ORDER

          JAMES L. GRAHAM, UNITED STATES DISTRICT JUDGE.

         Plaintiff Christina Rembert brings this putative collective action for overtime pay under the Fair Labor Standards Act, 29 U.S.C. § 207, against her former employer, defendant A Plus Home Health Care Agency LLC. Also named as defendants are the individuals who own A Plus: Elliot Osunde, Olurotimi Banjoko, Osaghamudia Osazemwinde and Omoefe Efetevbia.

         This matter is before the court on plaintiff's motion to conditionally certify a collective action under the FLSA, which defendants oppose.

         I. Background

         Plaintiff is a Licensed Practical Nurse (LPN) who was employed by A Plus from September 2015 to January 2016. Her job duties included providing in-home health care services for patients of A Plus. Plaintiff was paid an hourly wage. She states in her declaration that she worked in excess of 40 hours per work week on numerous occasions. Rembert Decl. at ¶ 10. She further states that she was never paid overtime compensation, but only her regular hourly rate, whenever she worked in excess of 40 hours per work week. Id. at ¶ 11.

         Plaintiff believes that A Plus employs 50 or more additional individuals who provide in-home health care services for its patients. Some of these individuals are LPNs like plaintiff, while some are State Tested Nursing Assistants (STNAs), Registered Nurses (RNs) or other medical personnel. Plaintiff alleges that these other in-home health care employees regularly worked more than 40 hours per workweek but were not paid overtime compensation.

         In her motion to conditionally certify a collective action, plaintiff proposes that the class include all LPNs, STNAs, RNs and other medical personnel who are currently employed or were formerly employed by A Plus as home care employees at any time from January 1, 2015 to the present and who did not receive overtime compensation for hours worked in excess of 40 hours per workweek.

         II. Conditional Certification

         The FLSA requires covered employers to pay non-exempt employees not less than the applicable minimum wage for each hour worked, and one and one-half times the employee's regular rate of pay for each hour worked in excess of forty hours per week. 29 U.S.C. §§ 206-207. Violations of the FLSA subjects an employer to liability for unpaid wages, liquidated damages and attorneys' fees and costs. 29 U.S.C. § 216(b).

         This suit is based on the “Home Care Final Rule, ” a rule promulgated by the United States Department of Labor in 2013 to extend wage and overtime protections to home care workers. See 29 C.F.R. § 552.109(a).

         A collective action under the FLSA “may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No. employee shall be a party plaintiff to any such action unless he gives his consent in writing[.]” 29 U.S.C. § 216(b). In order to join a collective action, an employee must (1) be “similarly situated” to the plaintiff who maintains the action, and (2) give his written consent to join. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006).

         Courts apply a “fairly lenient standard” at the conditional certification stage in determining whether the employees to be notified are similarly situated to plaintiff. Comer, 454 F.3d at 547. Plaintiff must “make a modest factual showing” that is she similarly situated to the other employees she is seeking to notify. Id. at 546-47 (internal quotation marks and citations omitted). “[P]laintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs.” O'Brien v. Ed Donnelly Enter., Inc., 575 F.3d 567, 585 (6th Cir. 2009). See also Lewis v. Huntington Nat'l Bank, 789 F.Supp.2d 863, 868 (S.D. Ohio 2011) (“[S]imilarly situated class members under FLSA are those whose causes of action accrued in approximately the same manner as those of the named plaintiffs.”).

         Defendants argue that plaintiff has not met her burden of showing that she is similarly situated to members of the proposed class because she has not submitted any declaration other than her own. In making the similarly-situated determination, courts may consider whether affidavits of potential plaintiffs have been submitted. See Lewis, 789 F.Supp.2d at 868. But submitting affidavits from potential plaintiffs is not a prerequisite to conditional certification. See Brandenburg v. Cousin Vinny's Pizza, LLC, No. 3:16-cv-516, 2017 WL 3500411, at **3-4 (S.D. Ohio Aug. 15, 2017). A court can conditionally certify a collective action under the FLSA on the strength of a single affidavit or declaration if ...


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