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 & ORDER
T. Copenhaver, Jr., Judge
is plaintiffs' motion to reissue notice and reopen the
opt-in period for plaintiffs' action under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et
seq., filed August 30, 2018.
unspecified date in March 2016, the United States Department
of Labor (“DOL”) contacted defendants about
initiating an investigation related to their pay practices.
Rose Aff., ECF No. 223-1, Ex. 1, ¶¶ 21-22.
Plaintiff Pamela Mayhew complained to the DOL in early 2017,
seeking overtime pay she was owed. On July 28, 2017, Mayhew
initiated an individual action under the FLSA. ECF No. 1. On
August 30, 2017, Mayhew filed her First Amended Complaint
expanding her prior claims to include a collective action
under the FLSA. ECF No. 6.
held a final exit conference with defendants on September 13,
2017, during which they were advised of an overtime
compensation obligation for over 200 employees of Loved Ones
In Home Care, LLC (“Loved Ones”). Rose Aff., ECF
No. 223-1, Ex. 1, ¶¶ 30-31. DOL ultimately offered
to settle the claims without Loved Ones admitting any
liability. Id. ¶¶ 46-47. On October 26,
2017, in facilitation of settlement, DOL presented its final
calculations to Loved Ones on a standard DOL Form 56, which
provided a summary of alleged unpaid wages for certain
current and former employees. Id. ¶¶ 39-40;
see Form 56 Excerpt, ECF No. 223-1, Ex. D. That form was
accepted and signed by defendant Donna Skeen on behalf of
Loved Ones on November 8, 2017, and the DOL allotted
defendants until February 6, 2018 to settle with the affected
employees. Rose Aff., ECF No. 223-1, Ex. 1, ¶¶
49-53. The DOL settlement process concluded no later than
February 6, 2018. Id. ¶¶ 61-62.
presented to employees who were offered a DOL settlement
three documents: a Cover Letter, a Form 58 (a standard form,
drafted by DOL for defendants to use during the settlement
process), and a “Release.” Id. ¶
55-57; Cover Letter, ECF No. 221-2, Ex. B; Release, ECF No.
221-3, Ex. C. Notably, the Cover Letter provided three
options to the employees: 1) “voluntarily accept
payment of the sum of money calculated by the DOL, ” 2)
“voluntarily refuse to sign the Form and choose to
participate in the . . . [instant lawsuit] that is seeking a
larger sum of alleged unpaid overtime wages, ” or 3)
“voluntarily do neither.” Cover Letter, ECF No.
221-2, Ex. B, at 1. As noted, the Release explicitly
identifies this civil action and its potential for collective
action under the FLSA. The Release further states:
“[t]he releases set forth in this Release shall cover
all claims both known and unknown in the aforementioned civil
action.” Release, ECF No. 221-3, Ex. C, at 1, 3.
addition, from November 2017 through January 2018, some
employees came to Loved Ones' office to discuss the offer
of settlement. Rose Aff., ECF No. 223-1, Ex. 1, ¶ 53.
They were provided a verbal explanation of that offer.
Id. At some unknown point, defendants began video
recording the meetings. Id. ¶ 54. Defendants
sent a copy of the Cover Letter and the Release to
plaintiffs' counsel via email on December 14, 2017;
plaintiffs' counsel responded with his own email
containing several objections to the content of those
documents. Mr. Toor Email, ECF 223-2, at 11-12.
December 1, 2017, the court conditionally certified the
collective action in this case. ECF No. 23. Defendants
subsequently moved to limit the conditional collective action
certification on the grounds that it was too broad. ECF No.
27. After full briefing, the court ordered, on February 23,
2018, that the collective action be limited to employees who
worked for defendants in home health aide in two or more
programs during the course of the same pay period at any time
between July 28, 2014, and May 31, 2017. ECF No. 54, at 4.
the court's consideration of the motion to limit the
collective class, the parties filed an agreed collective
proposed notice on December 19, 2017. ECF Nos. 32-33. This
notice was very similar to a notice filed by the plaintiffs
on March 5, 2018 and approved by the court on March 6, 2018.
ECF Nos. 66, 67. Importantly, the Notice said: “The
lawsuit and the DOL settlement are completely separate from
each other” and “EVEN IF YOU SETTLE YOUR
CLAIMS WITH DOL, YOU MAY STILL PARTICIPATE IN THE
LAWSUIT.” ECF No. 66, at 1, 2 (emphasis in
original). Further, the Notice set a June 1, 2018 deadline
for potential plaintiffs to mail his consent to sue,
Id. at 3, and the defendants had already provided
plaintiffs' counsel with the names and addresses of
employees who met the court's conditional collective
action definition on February 27, 2018. ECF No. 60.
August 31, 2018, the plaintiffs moved, the day after filing
the motion currently in dispute, to re-expand the scope of
the FLSA collective class. ECF No. 222. The plaintiffs later
sought to withdraw that motion, which the court permitted
them to do on September 27, 2018. ECF No. 230.
September 19, 2018, the plaintiffs moved to extend certain
deadlines, particularly for discovery. ECF No. 226.
Defendants did not oppose extending the deadlines but did
object to the plaintiffs' visiting blame on defendants
respecting the necessity of an extension. On September 27,
2018, the court extended discovery pending further order.
parties offer competing standards governing the adjudication
of this dispute.
plaintiffs first contend that the “Defendants were
directly communicating materially false information to their
employees about the lawsuit and those employees' rights .
. . . [which] created significant confusion within the
potential plaintiff population and . . . directly led to the
failure of many potential plaintiffs to opt-in to the
action.” Pls.' Mot. Reissue Notice