United States District Court, S.D. Ohio, Eastern Division
Christina Rembert, on behalf of herself and others similarly situated Plaintiff,
A Plus Home Health Care Agency LLC, et al., Defendants.
OPINION AND ORDER
L. GRAHAM, UNITED STATES DISTRICT JUDGE.
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.
matter is before the court on plaintiff's motion to
conditionally certify a collective action under the FLSA,
which defendants oppose.
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
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.
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.
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).
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).
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.
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.”).
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 ...