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Mayhew v. Loved Ones In Home Health Care, LLC

United States District Court, S.D. West Virginia, Charleston

December 27, 2018

PAMELA MAYHEW, BETSY FARNSWORTH, on behalf of themselves and others similarly situated, Plaintiffs,
v.
LOVED ONES IN HOME CARE, LLC, and DONNA SKEEN, Defendants.

          MEMORANDUM OPINION & ORDER

          John T. Copenhaver, Jr., Judge

         Pending 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.

         I. Background

         On an 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.

         The DOL 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.[1] 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.

         Defendants 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.

         In 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.

         On 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.

         During 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.

         On 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.

         On 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.

         II. Analysis

         The parties offer competing standards governing the adjudication of this dispute.

         The 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 ...


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