United States District Court, S.D. West Virginia, Charleston
PAMELA MAYHEW, BETSY FARNSWORTH, on behalf of themselves and others similarly situated, Plaintiffs,
LOVED ONES IN HOME CARE, LLC, and DONNA SKEEN, Defendants.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr., United States District Judge
before the court is the plaintiffs' motion for
conditional certification of the present action as a
collective action under the Fair Labor Standards Act (the
“Act”), 29 U.S.C. § 216(b), filed on August
30, 2017. Plaintiffs seek such certification on behalf of all
similarly situated employees of the defendants impacted by
the same or similar pay practices as those pay practices that
deprived plaintiffs of overtime pay. The motion is
accompanied by plaintiff Mayhew's affidavit. Defendants
have filed a response in opposition. Plaintiffs, alleging a
willful violation, seek recovery for the three years that
precede the filing of the original complaint on July 28,
2017. Among its other affirmative defenses, Loved Ones
contends it was exempt from the Act's overtime pay
requirements, based on 29 U.S.C. § 213(a)(15), the scope
of which arguably encompassed home health care workers, such
as the plaintiffs.
court accepts the background facts, primarily as they are
presented in the motion as well as in the second amended
complaint (hereinafter “Complaint” or
“Compl.”), as true for the purposes of
considering this motion. Plaintiffs have worked for defendant
Loved Ones, a third party provider of home health care
services in West Virginia, as home health care workers.
Defendant Donna Skeen is a “member or the managing
member” of Loved Ones, controls its “day-to-day
operations, ” and is an “employer” as that
term is defined in the Act. 29 U.S.C. § 203(d); Compl.
¶ 3. Plaintiff Mayhew is affiliated with Loved Ones'
office in South Charleston, and plaintiff Farnsworth is
affiliated with its location in Ripley.
plaintiffs regularly and consistently worked in excess of a
forty-hour workweek and were allegedly at no time exempt from
the Act's wage and hour requirements, they were not paid
all of the overtime pay they were owed until defendants
changed their payroll practices in May 2017 to bring them
into compliance. Defendants' failure to pay an enhanced
overtime rate was allegedly “deliberate and
knowing” as evidenced by the “elaborate measures
Defendants have employed to avoid detection and
challenge.” Compl. ¶ 11. As a significant part of
that failure, between “early” 2016 and May 2017,
defendants made out two distinct paychecks for each workweek
with straight-time compensation on each check without regard
for hours on the other. At other times (presumably prior to
early 2016), defendants did not pay overtime despite
including all the time on a single paycheck. Id.
¶¶ 12-14. Other employees were also adversely
affected by similar payroll practices, which were based on
uniform protocols. Id. ¶ 15, 22; Ans. to Compl.
¶ 19. When Mayhew asked her employer about the overtime
pay practices, she was told that the practices were
“legal and proper because they paid hours by individual
funding sources.” Mot. at 4. Loved Ones explains that
as a home health aide/home care provider, Mayhew serves
clients under two separate programs, the personal care
program and the Medicaid waiver program, which were treated
as distinct for payroll purposes during the period from early
2016 to May 2017. ECF No. 8 at 10. Thus, during that period,
she was treated as if she had two separate jobs for overtime
as already noted, plaintiffs maintain that they were covered
by the Act's protections at all relevant times, a new
administrative rule issued by the United States Department of
Labor (“DOL”) made them “specifically
subject” to these protections. Compl. ¶¶ 7-8.
The rule, with the original effective date of January 1,
2015, governs the application of the Act's protections to
the home health care industry in general and to the
plaintiffs in particular. Application of the Fair Labor
Standards Act to Domestic Service, 78 Fed. Reg. 60454-01
(Oct. 1, 2013). The rule interprets the Act's exemption
for “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.A. § 213(a)(15). With
respect to third party employers such as Loved Ones, the rule
states as follows:
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
provided by section 13(a)(15) of the Act, even if the
employee is jointly employed by the individual or member of
the family or household using the services.
29 C.F.R. § 552.109.
contrast, before the new rule went into effect, the statutory
exemption for companionship services included employees of
third party providers, such as Loved Ones, which arguably
made its conduct lawful at the time. See Home Care
Ass'n of Am. v. Weil, 799 F.3d 1084, 1087 (D.C. Cir.
2015). Understandably, defendants assert the statutory
exemption as one of their affirmative defenses. Ans. at 7.
rule had initially been stayed pursuant to a decision by the
U.S. District Court for the District of Columbia, but on
August 21, 2015, the D.C. Circuit overturned the vacatur of
the rule, ordering the district court to enter summary
judgment in favor of the DOL. Weil, 799 F.3d at
1097. As a result of this delay, the DOL has chosen to
enforce the new rule starting on November 12, 2015, thirty
days after the D.C. Circuit issued a mandate directing the
district court to enter summary judgment, pursuant to its
policy. 80 Fed. Reg. 65646, 65647 (Oct. 27, 2015), whereas
plaintiffs assert the rule's effective date to be January
complained to the DOL in early 2017, seeking the back
overtime pay she was owed. While communicating with the DOL
investigators, Mayhew was informed of “DOL's
preliminary opinion” that defendants had engaged in
similar conduct that violated the Act with respect to seventy
other employees working out of the same South Charleston
office. Farnsworth was subject to the same conduct even
though she works out of Ripley. Compl. ¶¶ 20-21.
The parties agree that the DOL is now in the process of
attempting to calculate and to settle overtime claims of
approximately 230 similarly situated employees working out of
defendants' various locations. Id. ¶ 17;
Ans. ¶ 17.
already noted, in May 2017, Loved Ones changed its overtime
pay policy across the board, so the plaintiffs received the
overtime pay that was due them after that date. After Mayhew
learned that, pursuant to the agency's general written
policy, DOL would only seek wages back to November 2015, she
instituted the present action with the assistance of her
private counsel, and Farnsworth later joined the action.
seek damages (including overtime pay due, liquidated damages
and attorney fees, costs, and interest) under 29 U.S.C.
§ 255 for willful violations of the Act, incurred over a
period of three years that predate the filing of the
complaint. In addition, they seek this present certification
to issue notice to all similarly situated plaintiffs. Compl.
Ones requests that the certification be denied or,
alternatively, stayed pending the DOL settlement, or limited
Conditional Certification of ...