united states district court western...

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BOBBI LEE, individually and on behalf of all others similarly situated; Plaintiff, vs. CAREGIVERS FOR INDEPENDENCE, LLC, et al Defendants.

§ § § § § § § § § § § § § § §

CASE NO. 1:16-cv-00946 Judge Michael R. Barrett

PLAINTIFF’S MOTION TO CONDITIONALLY CERTIFY A FLSA COLLECTIVE ACTION, APPROVE NOTICE AND EXPEDITED CONSIDERATION

NOW INTO COURT, through undersigned counsel, comes Plaintiff, Bobbi Lee, who

hereby respectfully moves this Honorable Court to conditionally certify this matter as an FLSA

collective action and to approve notice, for the reasons more fully assigned in the attached

Memorandum in Support.

Respectfully submitted, /s/ Andrew Kimble

Andrew Kimble KIMBLE LAW 165 Old Henderson Road Columbus, Ohio 43220 Telephone: (614) 983-0361 Facsimile: (614) 448-9408 Email: [email protected]

Case: 1:16-cv-00946-MRB Doc #: 16 Filed: 12/20/16 Page: 1 of 35 PAGEID #: 52

Philip Bohrer, Esq. (pro hac vice) Scott E. Brady, Esq. (pro hac vice) BOHRER BRADY LLC 8712 Jefferson Highway, Ste. B Baton Rouge, LA 70809 Tel: 225-925-5297 Fax: 225-231-7000 E-mail: [email protected] E-mail: [email protected]

Attorneys for Plaintiff and the Putative Collective


i

Table of Contents Table of Authorities ........................................................................................................................ ii

I. PRELIMINARY STATEMENT ............................................................................................. 1

II. PROCEDURAL HISTORY .................................................................................................... 2

III. RELEVANT FACTS ........................................................................................................... 3

IV. ARGUMENT ....................................................................................................................... 4

A. The Fair Labor Standards Act is a Remedial Statute ........................................................... 4

B. The Collective is Similarly Situated. ................................................................................... 5

C. Notice Should be Sent to Similarly Situated Employees ..................................................... 9

D. Defendans Should be Directed to Supply Names and Contact Information to Facilitate Prompt and Effective Notice to Putative Collective Members. ............................................ 1110

E. Plaintiff’s Proposed Notice and Reminder Postcard Should be Mailed, E-Mailed, and Posted ........................................................................................................................................ 15

1. Email ........................................................................... 16Error! Bookmark not defined.

3. Post Card Reminders ...................................................................................................... 17

4. Reminder Calls………………………………………………………………………….19

5. Posting…………………………………………………………………………………19

V. Expedited Consideration………………………………………………………………..20

VI. Equitable Tolling………………………………………………………………………...22

VII. Relief Sought ......................................................................................................................... 22


ii

Table of Authorities

Cases

A.H. Phillips v. Walling, 324 U.S. 490, 493 (1945)……………………………………………...4

Ahmed v. T.J. Maxx Corp., No. 10 Civ. 3609 ADS ETB, 2012 WL 5507329 (E.D.N.Y. Nov. 14, 2012) ...................................................................................................... 12

Atkinson v. TeleTech Holdings, Inc., 2015 U.S. Dist. LEXIS 23630, at *12 (S.D. Ohio February 26, 2015)……………………………………………………………………………………10,17

Anyere v. Wells Fargo, Co., Inc., 09-cv-2769, 2010 WL 1542180 (N.D. Ill. Apr. 12, 2010)…..15

Baden-Winterwood v. Life Time Fitness, 484 F.Supp.2d 822 (S.D. Ohio 2007)………………..22

Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948) .................................................. 5

Bazzell v. Body Contour Centers, LLC, C16-0202JLR, 2016 WL 3655274, at *7 (W.D. Wash. July 8, 2016)……………………………………………………………………………………17

Bilskey v. Bluff City Ice, Inc., No. 1:13-cv-62 SNLJ, 2014 U.S. Dist. LEXIS 60209, 2014 WL 1664893, at *1 (E.D. Mo. April 25, 2014)……………………………………………………….13

Blake v. Colonial Savings, 2004 WL 1925535 (S.D. Tex. Aug. 16, 2004) .................................. 15

Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335 (2nd. Cir. 1978) ................ 5

Burch v. Qwest Communs. Int’l., Inc., 500 F. Supp. 2d 1181 (D.C. Minn. July 27, 2007)……...13

Butler v. DirectSAT USA, LLC, 876 F. Supp. 2d 560, 575 (D. Md. 2012)………………………17

Carter v. Jackson-Madison County Hosp. Dist., 2011 U.S. Dist. LEXIS 35163, *45 (W.D. Tenn. Mar. 31, 2011)……………………………………………………………………………………7

Capsolas v. Pasta Res., Inc., No. 10 Civ. 5595, 2011 WL 1770827 (S.D.N.Y. May 9, 2011) ...................................................................................................................................... 14

Castillo v. P & R Enterprises, Inc., 517 F. Supp. 2d 440 (D.D.C. 2007) ..................................... 19

Chhab v. Darden Restaurants, Inc., 11 Civ. 8345(NRB), 2013 WL 5308004 (S.D. N.Y. Sept. 20, 2013) ......................................................................................................... ….18

Chin v. Tile Shop, LLC, 57 F. Supp. 3d 1075, 1095 (D.C. Minn. Oct. 27, 2014)………………13

Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006)……………………………...6


iii

Cook v. Comm'r of Social Security, 480 F.3d 432, 437 (6th Cir. 2007)…………………………22

Crescenzo v. O-Tex Pumping, LLC, 2016 U.S. Dist. LEXIS 78012, *11 (S.D. Ohio June 15, 2016)…………………………………………………………………………………..7

Dandison v. Hank’s Furniture, Inc., 2015 U.S. Dist. LEXIS 64217 (E.D. Ark. May 15, 2015)12

D'Antuono v. C & G of Groton, Inc., 3:11CV33 MRK, 2011 WL 5878045 (D. Conn. Nov. 23, 2011) ....................................................................................................................... 12

Denney v. Lester's, LLC, No. 4:12-cv-377 JCH, 2012 U.S. Dist. LEXIS 125560, 2012 WL 3854466, at *4 (E.D. Mo. Sept. 5, 2012)………………………………………………………13

Douglass v. GE Energy Reuter Stokes, No. 1:07-CV-77, 2007 U.S. Dist. LEXIS 32449, 2007 WL 1341779 (N.D. Ohio, April 20, 2007)………………………………………………………9

Dunlop v. Carriage Carpet Co., 548 F.2d 139, 144 (6th Cir. 1977)………………………………4

Edwards v. Multiband Corp., No. 10-cv-2826 (MJD/JJK), 2011 U.S. Dist. LEXIS 3460, 2011 WL 117232 (D. Minn. Jan. 13, 2011)……………………………………………………………14

Engle v. Burlington Coat Factory Direct Corp., 2013 U.S. Dist. LEXIS 130513 (S.D. Ohio 2013)……………………………………………………………………………………………22

Frank v. Capital Cities Communications, Inc., 88 F.R.D. 674 (S.D.N.Y. 1981) ......................... 20

Gambino v. Harvard Protection Servs. LLC, No. 10 Civ. 0983 (PAC), 2011 WL 102691 (S.D.N.Y. Jan. 11, 2011) .......................................................................................... 17

Gascho v. Global Fitness Holdings, LLC, 2014 U.S. Dist. LEXIS 46846, at 17 (S.D. Ohio April 4, 2014)…………………………………………………………………………………………..18

Garza v. Chicago Transit Authority, No. 00 C 0438, 2001 WL 503036 (N.D. Ill. May 8, 2001) .......................................................................................................................... 19

Gee v. SunTrust Mortg., Inc., No. 10–CV–1509, 2011 WL 722111 (N.D. Cal. Feb. 18, 2011) ................................................................................................................................ 18

Graham v. Overland Solutions, Inc., 10 Civ. 672 BEN (BLM), 2011 WL 1769737 (S.D. Cal. May 9, 2011) ......................................................................................................... 18

Gortat v. Capala Bros., Inc., No. 07-cv-3629, 2010 WL 1423018, at *9 (E.D.N.Y. Apr. 9, 2010)……………………………………………………………………………………………..20

Guzelgurgenli v. Prime Time Specials Inc., --- F.Supp.2d ----, 11 Civ. 4549 , 2012 WL 3264314 (E.D. N.Y. Aug. 8, 2012) ................................................................................ 18


iv

Hardesty v. Kroger Co., 2016 U.S. Dist. LEXIS 93866, *3 (S.D. Ohio July 19, 2016)……….10

Harris v. Express Courier Int’l, Inc., 2016 U.S. Dist. LEXIS 127119 (W.D. Ark. Sept. 19, 2016)……………………………………………………………………………………………..12

Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835 (N.D. Cal. 2010) .......................................... 18

Hart v. U.S. Bank NA, CV 12-2471-PHX-JAT, 2013 WL 5965637 (D. Ariz. Nov. 8, 2013) ...................................................................................................................................... 18

Heaps v. Safelite Solutions, LLC, 2011 U.S. Dist. LEXIS 40089, *16 (S.D. Ohio April 5, 2011)……………………………………………………………………………………………..12

Helton v. Factor 5, Inc., C 10–04927 SBA, 2012 WL 2428219 (N.D.Cal. June 26, 2012) ...................................................................................................................................... 18

Heibel v. U.S. Bank Nat'l Ass'n, No. 2:11-CV-00593, 2012 U.S. Dist. LEXIS 139510, 2012 WL 4463771, at *2 (S.D. Ohio Sept. 27, 2012)……………………………………………………5,7

Hoffman-LaRoche v. Sperling, 493 U.S. 165, 170-71 (1989)………………………5,6,9,10,11,17

Hughes v. Gulf Interstate Field Servs., 2015 U.S. Dist. LEXIS 88205 (S.D. Ohio July 7, 2015)..9

Hunter v. Sprint Corp., 346 F.Supp.2d 113, 117 (D.D.C. 2004)………………………………6,8

In re Deloitte & Touche, LLP Overtime Litig., 11 CIV. 2461 RMB THK, 2012 WL 340114 (S.D.N.Y. Jan. 17, 2012) .......................................................................................... 17

In re HCR ManorCare, Inc., No. 113866, 2011 U.S. App. LEXIS 26241, 2011 WL 7461073, at *1 (6th Cir. Sept. 28, 2011)………………………………………………………………………6

In re Janney Montgomery Scott LLC Financial Consultant Litigation, 06 civ. 3202, 2009 WL 2137224 (E.D. Pa. July 16, 2009) ......................................................................... 18

Johnson v. American Airlines, 531 F. Supp. 957 (S.D. Tex. 1982) .............................................. 20

Jones v. Cretic Energy Servs., LLC, 149 F. Supp. 3d 761, 776 (S.D. Tex. Dec. 9, 2015)………19

Kampfer v. Fifth Third Bank, 2016 U.S. Dist. LEXIS 37056, *20 (N.D. Ohio Mar. 22, 2016)..22

Kelly v. Bank of America, N.A., 10 Civ. 5332, 2011 WL 7718421 (N.D. Ill. Sept. 23, 2011) ...................................................................................................................................... 14

Kidd v. Mathis Tire & Auto Serv., 2014 U.S. Dist. LEXIS 142164, at *6 (W.D. Tenn. Sept. 18, 2014) ……………………………………………………………………………...…………...19


v

Killion v. KeHE Distrib., Nos. 3:12-cv-470, 3:12-cv-1585, 2002 U.S. Dist. LEXIS 156745, at *4 (N.D. Ohio Oct. 31, 2012)………………………………………………………………………...7

Lacy v. Reddy Elec. Co., No. 3:11-cv-52, 2011 U.S. Dist. LEXIS 142050 (S.D. Ohio Dec. 9, 2011)………………………………………………………………………………………………9

Larson v. Rush Fitness Corp., 2012 U.S. Dist. LEXIS 189211 (E.D. Tenn. Oct. 17, 2012)……12

Laichev v. JBM, Inc., 269 F.R.D. 633, 637 (S.D. Ohio 2008)………………………………….2,6

Lujan v. Cabana Mgmt., Inc., No. 10 Civ. 755(ILG), 2011 WL 3235628 (E.D.N.Y. July 27, 2011) ........................................................................................................................ 17

Marshall v. Deutsche Post DHL & DHL Express (USA) Inc., 2015 U.S. Dist. LEXIS 125869 (E.D.N.Y. September 21, 2015…………………………………………………………………..19

McClean v. Health Sys., 2012 U.S. Dist. LEXIS 22874 (W.D. Mo. Feb. 23, 2012)……………..7

McNelley v. ALDI, Inc., No. 1:09 CV 1868, 2009 U.S. Dist. LEXIS 130788, 2009 WL 7630236 (N.D. Ohio Nov. 17, 2009)……………………………………………………………………….6

McKinzie v. Westlake Hardware, Inc., No. 09-796-CV-W-FJG, 2010 U.S. Dist. LEXIS 58078, 2010 WL 2426310 (W.D. Mo. June 11, 2010)…………………………………………………..14

Miklos v. Golman-Hayden Cos., 2000 U.S. Dist. LEXIS 22352, *3 (S.D. Ohio Oct. 24, 2000)…9

Monroe v. FTS USA, LLC, No. 14-6063, 2016 WL 814329, at *7 (6th Cir. Mar. 2, 2016)………9

Morgan v. family Dollar Stores, 551 F.3d 1233, fn. 41 (11th Cir. Dec. 16, 2008)……………….7

Morris v. Lettire Const., Corp., 896 F. Supp. 2d 265 (S.D.N.Y. 2012) ....................................... 18

Musarra v. Digital Dish, Inc., 2008 U.S. Dist. LEXIS 110003, *17 (S.D. Ohio 2008)………7,9

Nobles v. State Farm Mut. Auto Ins. Co., No. 2:10-CV-04175-NKL, 2011 U.S. Dist. LEXIS 131448, 2011 WL 5563444 (W.D. Mo. Nov. 15, 2011)…………………………………………13

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978) ........................................................... 11

Patton v. Thomson Corp., 364 F. Supp. 2d 263 (E.D.N.Y. 2005) ................................................ 15

Petty v. Russell Cellular, Inc., 2014 U.S. Dist. LEXIS 42185, at *16 (S.D. Ohio March 28, 2014)……………………………………………………………………………………………..17

Pippins v. KPMG LLP, No. 11 Civ. 0377, 2012 WL 19379 (S.D.N.Y. Jan. 3, 2012).................. 16

Pritchard v. Dent Wizard Intl Corp., 210 F.R.D. 591 (S.D. Ohio Apr. 5, 2002)…………………9


vi

Rebischke v. Tile Shop, LLC, No. 14-624, 2015 U.S. Dist. LEXIS 8518, *5 (D.C. Minn. Jan. 26, 2015)……………………………………………………………………………………………..13

Ribby v. Liberty Health Care Corp., No. 3:13-CV-613, 2013 U.S. Dist. LEXIS 86835, 2013 WL 3187260, at *2 (N.D. Ohio June 20, 2013)……………………………………………………….7

Roberts v. Corr. Corp. of Am., 2015 U.S. Dist. LEXIS 82575, *45-46 (M.D. Tenn. June 25, 2015)………………………………………………………………………………………………7

Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474 (E.D. Cal. 2006) ................................. 19

Ross v. Jack Rabbi Servs., LLC, 2014 U.S. Dist. LEXIS 33142 (W.D. Kent. Mar. 13, 2014)….11

Saffels v. Rice, 40 F.3d 1546, 1548 (8th Cir. 12/2/94)………………………………5

Saddler v. Memphis City Sch., No. 12-CV-2232, 2013 U.S. Dist. LEXIS 45479, at *16 (W.D. Tenn. Feb. 4, 2013); ………………………………………………7

Sanchez v. Sephora USA, Inc., No. 11–CV–3396, 2012 WL 2945753 (N.D. Cal. July 18, 2012) ................................................................................................................................ 18

Sherrill v. Sutherland Global Servs. Inc., 487 F. Supp. 2d 344 (W.D.N.Y. 2007)....................... 19

Shipes v. Amurcon Corp., No. 10-14943, 2012 U.S. Dist. LEXIS 39794, 2012 WL 995362, at *5 (E.D. Mich. Mar. 23, 2012)……………………………………………………………………….7

Shoots v. iQor Holdings US, Inc., 2015 U.S. Dist. LEXIS 141617 (D.C. Minn. Oct. 19, 2015)..13

Smith v. Lowe’s Companies, Inc., No. 2:04-cv-774, 2005 WL 6742234, at *3-4 (S.D. Ohio May 11, 2005)…………………………………………………………………………………………21

Sniffen v. Spectrum Indus. Sevs., 2007 U.S. Dist. LEXIS 35206 (S.D. Ohio Feb. 13, 2007)…9,12

Snodgrass v. Bob Evans Farms, LLC, 2013 U.S. Dist. LEXIS 172279, *7 (S.D. Ohio Dec. 5, 2013)…………………………………………………………………………………………7,12

Soler v. G&U, Inc., 86 F.R.D. 524 (S.D.N.Y. 1980) .................................................................... 20

Solis v. Aguilar, 2009 U.S. Dist. 87021, *9 (M.D. Tenn. Sept. 7, 2009)………………………..13

Struck v. PNC Bank N.A., 931 F. Supp. 2d 842, 846-49 (S.D. Ohio 2013)……………………22

Swarthout v. Ryla Teleservices, Inc., 11 Civ. 21, 2011 WL 6152347 (N.D. Ind. Dec. 12, 2011) ................................................................................................................................ 14

Swigart v. Fifth Third Bank, 276 F.R.D. 210, 214 (S.D. Ohio 2011)…………………………6,10


vii

Tenn. Coal, Iron & R.R. Co., et al. v. Muscoda Local No. 123, et al., 321 U.S. 590 (1944)…..4,5

Thomas v. Speedway Superamerica, LLC, 2005 U.S. Dist. LEXIS 45286, *14 (S.D. Ohio Sept. 13, 2005)……………………………………………………………………………………….6,8

Thompson v. K.R. Denth Trucking, Inc., 10 Civ. 0135, 2011 WL 4760393 (S.D. Ind. June 15, 2011) ........................................................................................................................ 15

Thompson v. Direct General Consumer Products, Inc., 2014 U.S. Dist. LEXIS 28912 (M.D. Tenn. 2014)…………………………………………………………………………………………………22

Veliz v. Cintas, No. C 03-1180 SBA, 2004 WL 2623909 (N.D. Cal. 2004) ................................ 19

Watson v. Advanced Distrib. Servs., LLC, 298 F.R.D. 558 (M.D. Tenn. 2014)………………….6

Waggoner v. U.S. Bancorp, 110 F. Supp.3d 759, 765 (N.D. Ohio June 24, 2015)…………5,6,7,9

White v. MPW Induc. Servs., 236 F.R.D. 363, 373 (E.D. Tenn. Mar. 21, 2006)…………………7

Wlotkowski v. Mich. Bell Tel. Co., 267 F.R.D. 213, 219 (E.D. Mich.2010)……………………..7

Woods v. Vector Mktg. Corp., C-14-0264 EMC, 2015 WL 1198593, at *7 (N.D. Cal. Mar. 16, 2015)……………………………………………………………………………………………..17

Statutes

29 U.S.C. § 256(b)……………………………………………………………………………….20

29 U.S.C. § 216(b) .................................................................................................................. 2,5,17

29 U.S.C. §202 (a)(3) ...................................................................................................................... 5

Rules

Rule 23, Federal Rule of Civil Procedure 23(c)(2)(B) ........................................................... 11, 23


1

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION TO CONDITIONALLY CERTIFY A FLSA COLLECTIVE ACTION, APPROVE NOTICE,

AND FOR EXPEDITED CONSIDERATION

I. PRELIMINARY STATEMENT

Plaintiffs and other similarly situated employees (FLSA Collective Members) were

employed by Defendants, Caregivers for Independence, LLC, James Couch, Phyllis “Sue”

Couch, and James Couch, II, as healthcare workers to provide care for elderly, ill or disabled

clients in group homes owned and/or operated by Defendants. This lawsuit challenges

Defendants’ common policy of not paying healthcare workers overtime for all hours over 40

worked in a workweek. The Named Plaintiff, Bobbi Lee (“Plaintiff”), was paid an hourly rate of

between $9.00 and $10.25 for all hours worked as a “Support Staff” in Defendants’ group

homes. Defendants did not pay Plaintiff or the FLSA Collective Members overtime for all

hours worked over 40 in a work week.

At this stage, the merits of Plaintiff’s claims and Defendants’ defenses are largely

irrelevant as the Court considers Plaintiff’s request for conditional certification. An order

conditionally certifying the proposed FLSA collective action does not require this Court to

consider the Plaintiff’s likelihood of success. This is particularly true at this early stage of the

litigation before the parties have completed any discovery. Nor does conditional certification

require this Court to decide whether the lawsuit will ultimately proceed to trial as a collective

action. Rather, conditional certification merely triggers the process by which affected

employees—whose FLSA limitation periods have not yet been tolled—may be informed of this

lawsuit and are provided an opportunity to join. Because Plaintiff satisfies this lenient

conditional certification standard, the Court should grant Plaintiff’s Motion and approve the


2

immediate issuance of judicially supervised notice to members of the proposed collective action,

which is defined to include:

All current and former group healthcare workers employed by Caregivers for Independence, LLC, James Couch, Phyllis “Sue” Couch and James Couch, II, and/or any of its or their affiliated entities who were not paid overtime for all hours worked over 40 in a work week since September 23, 2013.

Through this motion, Plaintiff seeks to take the first step in protecting the rights of the

other home healthcare workers who have worked at Caregivers for Independence within the

three years prior to the filing of the complaint, by sending them Court-approved notice of this

action and letting them decide whether to seek unpaid wages under the Fair Labor Standards Act

(“FLSA”). Plaintiff far exceeds the “modest factual showing” she must make to prevail on this

motion. Laichev v. JBM, Inc., 269 F.R.D. 633, 637 (S.D. Ohio 2008) (Barrett, J). Through the

allegations in the Complaint, the judicial admissions in Defendants’ Answer, and through

Plaintiff’s own affidavit and employment documents, Plaintiff demonstrates that Defendants

subjected all home healthcare workers at Caregivers for Independence to the same unlawful

compensation policies, and that other “similarly situated” home healthcare workers will benefit

from Court-authorized notice pursuant to 29 U.S.C. § 216(b).

II. PROCEDURAL HISTORY

Named Plaintiff Bobbi Lee filed this class and collective action on September 23, 2016.

She brings this collective action under the FLSA pursuant to 29 U.S.C. §216(b). (Dkt. 1). Ms.

Lee brings her FLSA claims on behalf of herself and other healthcare workers employed by

Defendants in their group homes. She alleges that Defendants violated the FLSA by

misclassifying them and other healthcare workers as exempt from the overtime pay requirements

of these laws. On November 18, 2016, Defendants answered the lawsuit. (Dkt. 15).


3

III. RELEVANT FACTS

Caregivers is a support service provider for seniors and the disabled.

(https://web.archive.org/web/20150814040545/http://caregiversforindependence.com/services.ht

ml). Caregivers is “owned and operated by James Couch, II, Phyllis ‘Sue” Couch, and James

Couch.” (https://web.archive.org/web/20150801103749/http://caregiversforindependence.com/).

These individual Defendants ran the business on a daily basis and made all pertinent decisions

regarding hours worked and payroll. (Ex. “A,” Declaration of Bobbi Lee, ¶¶ 6-7 see also

Defendants’ Answer, Dkt. 15, ¶¶ 26-31, 34).

If needed, Caregivers could provide care 24 hours per day, 7 days a week.

(https://web.archive.org/web/20150801103749/http://caregiversforindependence.com/). Group

home healthcare workers employed by Defendants, referred to as “Support Staff” by the

company, must undergo background checks, a check of abusers registry, a check of nurses aid

registry, a driving records check, personal and professional record check, vehicle check and an

insurance check. (Id.).

Defendants hire healthcare workers to work in group homes to provide companionship

services such as direct care, occasional light housekeeping, meal preparation, personal hygiene

and daily living needs, transportation and emotional and physical support.

(https://web.archive.org/web/20150814015045/http://caregiversforindependence.com/careers.ht

ml; Ex. “B”, Caregivers’ Support Staff Job Description). Plaintiff and all other similarly situated

group home healthcare workers share the same primary job duty: providing care and support

services to Defendants’ ailing clients. (Id.; Ex. “A,” ¶¶ 9-11).

Defendants assign the work responsibilities to group healthcare workers and monitor the

care they must provide to clients through Plans of Care. (Ex. “A,” ¶¶ 12-14; see also,


4

https://web.archive.org/web/20150814040545/http://caregiversforindependence.com/services.ht

ml (“Care plans tailored to your needs” and “tailored care plans”)). Defendants utilize and assign

“Program Managers” to each patient to draft and implement plans of care.

(https://web.archive.org/web/20150814040545/http://caregiversforindependence.com/services.ht

ml). Group home healthcare workers employed by Defendants are expected to abide by these

plans of care. (Id.; Exs. “A” and “B”).

Plaintiff Lee worked for Defendants in the Cincinnati area as a “Support Staff” or group

home healthcare worker from approximately 2010 until her departure in August, 2015. (Dkt. 1 -

Complaint ¶ 3; see also Ex. “A”; Ex. “B”). Defendants acknowledge that Plaintiff and similarly

situated group home healthcare workers regularly worked over 40 hours per week. (See Dkt. 15 -

Defendants’ Answer, ¶¶ 46-47 (admitting that Plaintiff worked over 40 hours per week and that

others in her position worked over 40 hours per week “from time to time”); Ex. “C” – sampling

of Plaintiff’s paystubs and timesheets). All hours were documented on standardized company

timesheets and submitted to Defendants. (See Ex. “C”). However, Defendants never paid

Plaintiff any overtime wages. (See Exs. “A”, “C”).

IV. ARGUMENT

A. The Fair Labor Standards Act Is a Remedial Statute

The FLSA was designed “‘to extend the frontiers of social progress’ by ‘insuring to all

our able-bodied working men and women a fair day’s pay for a fair day’s work.’ [...] Any

exemption from such humanitarian and remedial legislation must therefore be narrowly

construed, giving due regard to the plain meaning of statutory language and the intent of

Congress.” A.H. Phillips v. Walling, 324 U.S. 490, 493 (1945). The FLSA’s overtime rules, “like

the other portions of the Fair Labor Standards Act, are remedial and humanitarian in purpose.”


5

Dunlop v. Carriage Carpet Co., 548 F.2d 139, 144 (6th Cir. 1977) quoting Tenn. Coal, Iron &

R.R. Co., et al. v. Muscoda Local No. 123, et al., 321 U.S. 590, 597 (1944). “Such a statute must

not be interpreted or applied in a narrow, grudging manner.” Saffels v. Rice, 40 F.3d 1546, 1548

(8th Cir. 12/2/94) quoting Tenn. Coal, Iron & R.R. Co., 321 U.S. at 597. Ensuring that the FLSA

protects “all” workers from substandard wages also prevents substandard wages from being used

as “an unfair method of competition” against law-abiding competitors. 29 U.S.C. §202 (a)(3);

see Battaglia v. General Motors Corp., 169 F.2d 254, 259 (2d Cir. 1948) (“Rights granted to

employees under the Fair Labor Standards Act ... are ‘charged or colored with the public

interest.’”).

The FLSA’s collective action provisions are an important aspect of achieving the

statute’s remedial purpose. Section 216(b) of FLSA authorizes any one or more employees to sue

an employer for unpaid overtime compensation and liquidated damages on behalf of himself and

other employees similarly situated. The collective action procedure “allows . . . plaintiffs the

advantage of lower individual costs to vindicate rights by the pooling of resources.” Hoffman-

LaRoche v. Sperling, 493 U.S. 165, 170-71 (1989). Sending notice to notify all similarly situated

employees of the action “comports with the broad remedial purpose of the Act, which should be

given a liberal construction, as well as with the interest of the courts in avoiding multiplicity of

suits.” Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335, 336 (2nd. Cir.

1978).

B. The Collective Is Similarly Situated.

The FLSA authorizes private parties to sue to recover damages and to bring a collective

action “[o]n behalf of . . . themselves and other employees similarly situated.” 29 U.S.C. §

216(b). The Sixth Circuit has “implicitly” approved a two-step approach in handling collective


6

actions. See, Waggoner v. U.S. Bancorp, 110 F. Supp.3d 759, 765 (N.D. Ohio June 24, 2015)

citing Heibel v. U.S. Bank Nat'l Ass'n, No. 2:11-CV-00593, 2012 U.S. Dist. LEXIS 139510,

2012 WL 4463771, at *2 (S.D. Ohio Sept. 27, 2012) (citing In re HCR ManorCare, Inc., No.

113866, 2011 U.S. App. LEXIS 26241, 2011 WL 7461073, at *1 (6th Cir. Sept. 28, 2011))

(further citation omitted); see also Watson v. Advanced Distrib. Servs., LLC, 298 F.R.D. 558

(M.D. Tenn. 2014) (applying two-step procedure); McNelley v. ALDI, Inc., No. 1:09 CV 1868,

2009 U.S. Dist. LEXIS 130788, 2009 WL 7630236 (N.D. Ohio Nov. 17, 2009) (same) .

At the initial certification or “notice” stage, the Plaintiff only needs to establish that other

employees are “similarly situated” to her. Id. citing Comer v. Wal-Mart Stores, Inc., 454 F.3d

544, 546 (6th Cir. 2006). The merits of the FLSA claim itself are not directly relevant to the

question of certification and the plaintiffs need only present a colorable basis for their claims. Id.

citing Swigart v. Fifth Third Bank, 276 F.R.D. 210, 214 (S.D. Ohio 2011). Employees are

“similarly situated” when they have been “victims of a common policy or plan that violated the

law”. Thomas v. Speedway Superamerica, LLC, 2005 U.S. Dist. LEXIS 45286, *14 (S.D. Ohio

Sept. 13, 2005) quoting Hunter v. Sprint Corp., 346 F.Supp.2d 113, 117 (D.D.C. 2004). That, in

turn, requires only a “modest factual showing.” Id.; see also Hoffman-LaRoche, Inc. v. Sperling,

493 U.S. 165 (1981). “The initial standard is fairly lenient, and in order to meet this standard,

[Plaintiff] must simply show that their positions are similar, not identical, to the positions held by

the putative class members.” Laichev, 269 F.R.D. at 637.

Such a threshold showing does not require individualized inquiries or a detailed factual

record. Waggoner, 110 F. Supp.3d at 765. Rather, at the first step of conditional certification,

Courts need only examine the pleadings and affidavits. Musarra v. Digital Dish, Inc., 2008 U.S.

Dist. LEXIS 110003, *17 (S.D. Ohio 2008); Carter v. Jackson-Madison County Hosp. Dist.,


7

2011 U.S. Dist. LEXIS 35163, *45 (W.D. Tenn. Mar. 31, 2011); Morgan v. family Dollar Stores,

551 F.3d 1233, fn. 41 (11th Cir. Dec. 16, 2008).

Any defense arguments regarding individual inquiries or the merits of the underlying

claims are premature at the conditional certification stage. Waggoner, 110 F.Supp.3d at 769

citing Killion v. KeHE Distrib., Nos. 3:12-cv-470, 3:12-cv-1585, 2002 U.S. Dist. LEXIS 156745,

at *4 (N.D. Ohio Oct. 31, 2012); White v. MPW Induc. Servs., 236 F.R.D. 363, 373 (E.D. Tenn.

Mar. 21, 2006); Heibel v. U.S. Bank Nat'l Ass'n, No. 2:11-CV-00593, 2012 U.S. Dist. LEXIS

139510, at *5 (S.D. Ohio Sept. 27, 2012); Saddler v. Memphis City Sch., No. 12-CV-2232, 2013

U.S. Dist. LEXIS 45479, at *16 (W.D. Tenn. Feb. 4, 2013); See also Roberts v. Corr. Corp. of

Am., 2015 U.S. Dist. LEXIS 82575, *45-46 (M.D. Tenn. June 25, 2015). Courts “do[] not

resolve factual disputes, decide substantive issues going to the ultimate merits, or make

credibility determinations” at this stage. Snodgrass v. Bob Evans Farms, LLC, 2013 U.S. Dist.

LEXIS 172279, *7 (S.D. Ohio Dec. 5, 2013); Crescenzo v. O-Tex Pumping, LLC, 2016 U.S.

Dist. LEXIS 78012, *11 (S.D. Ohio June 15, 2016) citing Ribby v. Liberty Health Care Corp.,

No. 3:13-CV-613, 2013 U.S. Dist. LEXIS 86835, 2013 WL 3187260, at *2 (N.D. Ohio June 20,

2013) (“During the notice stage, courts ‘do not resolve factual disputes, decide substantive issues

on the merits, or make credibility determinations.’”) (quoting Shipes v. Amurcon Corp., No. 10-

14943, 2012 U.S. Dist. LEXIS 39794, 2012 WL 995362, at *5 (E.D. Mich. Mar. 23, 2012)

(citing Wlotkowski v. Mich. Bell Tel. Co., 267 F.R.D. 213, 219 (E.D. Mich.2010))); see also

Roberts, 2015 U.S. Dist. LEXIS 82575 at *35; McClean v. Health Sys., 2012 U.S. Dist. LEXIS

22874 (W.D. Mo. Feb. 23, 2012).

Here, the Plaintiff submits more than sufficient evidence to meet the minimal standard

required for conditional certification. The lawsuit challenges a single policy of the Defendants:


8

choosing not to not pay group home healthcare workers overtime wages for all hours worked

over forty in a workweek. Such evidence of a common unlawful pay practice far exceeds the

low threshold for conditional certification. See Thomas, 2005 U.S. Dist. LEXIS 45286 at *14;

Hunter, 346 F.Supp.2d at 117. Plaintiff’s timesheets and paystubs plainly show that she was not

paid time and one half overtime for hours worked over 40 hours each workweek. (Ex. “C”).

Defendants acknowledge that other group home healthcare workers besides Plaintiff also worked

over 40 hours per week. (Dkt. 15, ¶ 47). All group home healthcare workers, referred to as

“Support Staff” by Defendants, shared the same job description and performed the same job

functions – to provide companionship care services for people that needed assistance with daily

living needs and basic living assistance. (Ex. “A,” ¶ 10 &11 (explaining that Plaintiff worked

alongside other Support Staff who were completing the same duties as her); see also Ex. “B”).

Defendants assign and monitor the work of group home healthcare workers must perform. (Ex.

“A”; ¶¶ 5-11; see also Ex. “B”;

https://web.archive.org/web/20150814015045/http://caregiversforindependence.com/careers.htm

l). All group home healthcare workers are subject to company policy and procedures. (Ex. “B”).

Defendants track the work hours of group home healthcare workers by utilizing company-wide

forms. (See Ex. “C”). Plaintiff and other group home healthcare workers were also required to

attend office meeting wherein job duties and responsibilities were discussed by the Couch

Defendants, safety meetings and training meetings. (Ex. “A”, ¶¶ 7-8; Ex. “C,” e.g., CFI000008).

At the conditional certification stage, this evidence is more than sufficient to show that Plaintiff

and other group home healthcare workers are similarly situated.

Courts in this circuit regularly grant conditional certification based on the plaintiff’s

submission of an affidavit and basic evidence about payment policy in the form of the defendant


9

employer’s documents or statements. See, Lacy v. Reddy Elec. Co., No. 3:11-cv-52, 2011 U.S.

Dist. LEXIS 142050 (S.D. Ohio Dec. 9, 2011); , supra; Hughes v. Gulf Interstate Field Servs.,

2015 U.S. Dist. LEXIS 88205 (S.D. Ohio July 7, 2015); Sniffen v. Spectrum Indus. Sevs., 2007

U.S. Dist. LEXIS 35206 (S.D. Ohio Feb. 13, 2007); Pritchard v. Dent Wizard Intl Corp., 210

F.R.D. 591 (S.D. Ohio Apr. 5, 2002); Douglass v. GE Energy Reuter Stokes, No. 1:07-CV-77,

2007 U.S. Dist. LEXIS 32449, 2007 WL 1341779 (N.D. Ohio, April 20, 2007).

Based on the facts above, the similarly situated requirement of conditional certification is

met. At the second stage, after discovery is complete, the Court may undertake a more searching

factual inquiry. Monroe v. FTS USA, LLC, No. 14-6063, 2016 WL 814329, at *7 (6th Cir. Mar.

2, 2016) (After the initial notice stage and the parties take discovery, the second stage occurs

“[o]nce discovery has concluded.”)

C. Notice Should Be Sent to Similarly Situated Employees

In furtherance of the FLSA’s broad remedial purpose, courts have the authority to notify

potential opt-in plaintiffs that they may join an existing action early in the proceedings. Hoffman-

La Roche, 493 U.S. at 170-72; Musarra, 2008 U.S. Dist. 110003 at *8; Waggoner, 110 F. Supp.

3d at 764; Miklos v. Golman-Hayden Cos., 2000 U.S. Dist. LEXIS 22352, *3 (S.D. Ohio Oct. 24,

2000). Collective actions provide workers an opportunity to “lower individual costs to vindicate

rights by pooling resources,” and enable the “efficient resolution in one proceeding of common

issues of law and fact.” Hoffmann-La Roche, 493 U.S. at 170. “Notice to putative FLSA

collective action class members must be ‘[a]ccurate’, should not ‘cause confusion,’ and should

be crafted so as ‘to avoid any misunderstanding . . . as to the status of the lawsuit.”” Hardesty v.

Kroger Co., 2016 U.S. Dist. LEXIS 93866, *3 (S.D. Ohio July 19, 2016) quoting Swigart v.

Fifth Third Bank, 276 F.R.D. 210, 214 (S.D. Ohio 2011).

Plaintiff’s proposed FLSA collective action notice, attached as Exhibit “D”, meets the


10

criteria for collective action wage cases. Hoffman-LaRoche, 493 U.S. at 170 (explaining that

similarly situated employees should receive “accurate and timely notice concerning the pendency

of the collective action, so that they can make informed decisions about whether to participate.”).

Accordingly, Plaintiff asks the Court to conditionally certify this action as an FLSA collective

action and approve the proposed notice in the form attached as Exhibit “E” to all group home

healthcare workers employed by Defendants since September 23, 2013.1

Notice should issue promptly in this case given the collective of workers it serves to

notify. Home healthcare workers are typically in the lower rungs of the socio-economic ladder

and live paycheck to paycheck. See, Application of the Fair Labor Standards Act to Domestic

Service, 76 F.R. 81190-01. Contact information such as addresses and phone numbers often

change due an inability to pay rent and phone bills if work is interrupted. Given that mail and

phone forwarding services expire, it is particularly important in this case that notice issue as soon

as practicable to provide effective notice of the opportunity to join the action.2 Further delay is

likely to deny many similarly situated workers the opportunity to join the action.

D. Defendants Should Be Directed to Supply Names and Contact Information to Facilitate Prompt and Effective Notice to Putative Collective Members.

Defendants should be directed to provide names, addresses, email addresses, telephone

1 Plaintiff has pled, and made a strong preliminary showing, that Defendants willfully violated the FLSA by failing to pay all group home healthcare workers overtime wages. Plaintiff respectfully requests that the Court grant a three-year notice period. The FLSA expressly permits a three-year statute of limitations to remedy willful violations of the Act. See 29 U.S.C. § 255(a). Courts in this Circuit typically apply a three-year statute of limitations for purposes of certifying a representative action where willfulness is disputed. Atkinson v. TeleTech Holdings, Inc., 2015 U.S. Dist. LEXIS 23630, *10 (S.D. Ohio Feb. 26, 2015). Here, Plaintiff alleged that Defendants acted willfully. See Dkt. 1, ¶¶ 52, 55, 59, 74, 84, 85. Therefore, Plaintiff respectfully requests that the Court grant a three-year notice period. 2 This FLSA collective action was filed on September 23, 2016. (Dkt. 1).


11

numbers, and any employee number or unique identifier3 of the collective members in an

electronic format to facilitate mailing of the notice. In the analogous context of Rule 23, Federal

Rule of Civil Procedure 23(c)(2)(B) provides that “the court must direct to class members the

best notice practicable under the circumstances, including individual notice to all members who

can be identified through reasonable effort.” While the Rule 23 standard is not directly

applicable to collective actions, the principle of notice being “the best practicable” makes logical

sense. As Defendants have the contact information for its current and former employees, the

Court should order Defendants to provide the information for sending notice. Oppenheimer

Fund, Inc. v. Sanders, 437 U.S. 340 (1978). The Supreme Court has directed that defendants

should provide names and addresses of collective members in collective action cases. Hoffmann-

LaRoche, Inc., 493 U.S. at 171. The names should be supplied promptly in a manipulable or

importable electronic format such as Excel so that notice is most easily accomplished.

This information is routinely ordered to be produced in FLSA collective actions to facilitate

notice. See, e.g., Ross v. Jack Rabbi Servs., LLC, 2014 U.S. Dist. LEXIS 33142 (W.D. Kent.

Mar. 13, 2014)(information produced in electronic format and importable format); Larson v.

Rush Fitness Corp., 2012 U.S. Dist. LEXIS 189211 (E.D. Tenn. Oct. 17, 2012) (production in

electronic format); Heaps v. Safelite Solutions, LLC, 2011 U.S. Dist. LEXIS 40089, *16 (S.D.

Ohio April 5, 2011)(information produced on expedited basis); Snodgrass, 2013 U.S. Dist.

LEXIS 17229 at 17 (electronic format); Sniffen, 2007 U.S. Dist. 35206 at *6; Harris v. Express

3 Unique identifiers are used to maintain database integrity in producing payroll. Providing the company’s unique identifiers will allow Plaintiff to sync the resulting database of clients with the Defendant’s databases for determining merits and damages issues. Without this ability to sync, for example, it will be unknown whether the Robert Doe in a given record refers to Robert Doe Jr, Robert Doe, Sr. Rob Doe, Rob Don, etc. Unique identifiers remove many of the database management issues that make handling a case of this type more complex and time consuming than necessary.


12

Courier Int’l, Inc., 2016 U.S. Dist. LEXIS 127119, *16 (W.D. Ark. Sept. 19, 2016) (“Defendant

is ordered to produce to Plaintiffs’ counsel within 21 days of the entry of this Order, in

electronically manipulable format, the names, last known addresses, and any and all know email

addresses”); Dandison v. Hank’s Furniture, Inc., 2015 U.S. Dist. LEXIS 64217, *5 (E.D. Ark.

May 15, 2015)(defendant ordered to produce list of potential collective-action members in

“excel, or some other electronically manipulable format”); D'Antuono v. C & G of Groton, Inc.,

3:11CV33 MRK, 2011 WL 5878045, at *6 (D. Conn. Nov. 23, 2011) (ordering defendants to

produce the “names, dates of service, and last known mailing addresses for all potential members

of the class”); Ahmed v. T.J. Maxx Corp., No. 10 Civ. 3609 ADS ETB, 2012 WL 5507329

(E.D.N.Y. Nov. 14, 2012) (collecting cases, ordering defendants to provide plaintiffs with last-

known e-mail addresses of potential opt-in plaintiffs).

Plaintiff also requests that Defendants be ordered to supply the dates of birth, last four

digits of social security numbers, and telephone numbers (if not initially provided) of anyone

whose notice is returned as undeliverable to enable skip tracing of those individuals. The last

four digits of the social security numbers and dates of birth will assist with location efforts or a

skip trace to find the current address for those individuals whose notice is returned as

undeliverable so that notice can then be re-mailed. Where the information is produced, it will

only be used to assist in “skip tracing”, i.e., to find out if the John Smith who used to live in

Tacoma is now the John Smith in Los Angeles, or Manhattan, using standard “skip trace”

databases to which counsel has access. Solis v. Aguilar, 2009 U.S. Dist. 87021, *9 (M.D. Tenn.

Sept. 7, 2009); Burch v. Qwest Communs. Int’l., Inc., 500 F. Supp. 2d 1181, *29 (D.C. Minn.

July 27, 2007)(defendant ordered to produce name, address, telephone number, dates of

employment, location of employment, last four digits of their social security number and date of


13

birth); Shoots, 2015 U.S. Dist. LEXIS 14167 at 75-76 citing Rebischke v. Tile Shop, LLC, No.

14-624, 2015 U.S. Dist. LEXIS 8518, *5 (D.C. Minn. Jan. 26, 2015)(requiring the production of

a list of all store managers within 10 days of the certification ruling to include the last known

address, telephone number, dates of employment, location of employment, last four digits of

each manager’s social security number, and date of birth); Chin v. Tile Shop, LLC, 57 F. Supp.

3d 1075, 1095 (D.C. Minn. Oct. 27, 2014)(requiring the defendant to produce within 10 days of

the conditional certification ruling a list of all relevant employees, including the employees'

name, address, and dates of employment); Bilskey v. Bluff City Ice, Inc., No. 1:13-cv-62 SNLJ,

2014 U.S. Dist. LEXIS 60209, 2014 WL 1664893, at *1 (E.D. Mo. April 25, 2014) (noting, in an

order compelling production, that the court had previously required defendants to produce the

full names, addresses, phone numbers, email addresses, and dates of employment for each class

member to facilitate notice to potential plaintiffs); Denney v. Lester's, LLC, No. 4:12-cv-377

JCH, 2012 U.S. Dist. LEXIS 125560, 2012 WL 3854466, at *4 (E.D. Mo. Sept. 5, 2012)

(granting conditional certification and requiring defendants to produce within 14 days of the

ruling a list of all potential Collective members, including their names, last known mailing

addresses, dates of employment, and email addresses, if known); Nobles v. State Farm Mut. Auto

Ins. Co., No. 2:10-CV-04175-NKL, 2011 U.S. Dist. LEXIS 131448, 2011 WL 5563444, at *2

(W.D. Mo. Nov. 15, 2011) (ordering the defendant to produce the last four social security

number digits, email addresses and home telephone numbers of putative plaintiffs, as well as

email addresses to aid plaintiffs in locating putative Collective members and to help

upload [*76] consent forms); McKinzie v. Westlake Hardware, Inc., No. 09-796-CV-W-FJG,

2010 U.S. Dist. LEXIS 58078, 2010 WL 2426310, at *5 (W.D. Mo. June 11, 2010) (granting

conditional certification and ordering defendant to provide a list of the relevant employees with


14

their last known residential address, home and cellular phone numbers, email addresses, and

dates of employment.); Edwards v. Multiband Corp., No. 10-cv-2826 (MJD/JJK), 2011 U.S.

Dist. LEXIS 3460, 2011 WL 117232, at *5 (D. Minn. Jan. 13, 2011) (requiring, within five days

of the conditional certification ruling, the production of name, job title, last known address and

telephone number, last known work or personal email address, dates of employment, location of

employment, employee number and social security number for all potential opt-in plaintiffs and

an electronic list of all potential opt-in plaintiffs employed by defendant).

Plaintiff also proposes that she be permitted to call any individual whose notice is

returned as undeliverable, solely to obtain a current address for the re-mailing of notice. Given

the short window for opting in to this case, a quick telephone call to find the current address is

often the most expeditious way of ensuring “the best practicable notice.” See, e.g., Capsolas v.

Pasta Resources, Inc., 10 CIV. 5595 RJH, 2011 WL 1770827, at *5 (S.D.N.Y. May 9,

2011)(“defendants will produce employees[’] social security numbers only in the event that

notice sent to the address provided by defendants is returned as undeliverable”); Swarthout v.

Ryla Teleservices, Inc., 11-cv-21, 2011 WL 6152347, *5 (N.D. Ind. Dec. 12, 2011) (defendant

ordered to produce the name, last known address, telephone number, dates of employment,

location of employment, last four digits of their social security number, and date of birth for each

Collective member); Kelly v. Bank of America, N.A., 10-cv-5332, 2011 WL 7718421 (N.D. Ill.

Sept. 23, 2011) (plaintiff received the names, addresses, social security numbers, telephone

numbers, and email addresses); Thompson v. K.R. Denth Trucking, Inc., 10-cv- 0135, 2011 WL

4760393 (S.D. Ind. June 15, 2011) (defendant ordered to produce the names, addresses,

telephone numbers, dates of employment, location of employment, and dates of birth of all

potential plaintiffs); Anyere v. Wells Fargo, Co., Inc., 09-cv-2769, 2010 WL 1542180 (N.D. Ill.


15

Apr. 12, 2010) (defendant ordered to produce names, addresses, e-mail addresses, telephone

numbers, and social security numbers); Blake v. Colonial Savings, 2004 WL 1925535, at * 2

(S.D. Tex. Aug. 16, 2004) (ordering production of telephone numbers and social security

numbers); Patton v. Thomson Corp., 364 F. Supp. 2d 263, 268 (E.D.N.Y. 2005) (telephone

numbers and social security numbers).

Although dates of birth and partial social security numbers need not be produced initially, the

Court should order them to be produced for any undelivered notices at this juncture. Given the short

window for responding to the notice, if Plaintiff was required to wait for the undeliverable notices to

be returned, then move for the additional information, or negotiate with Defendants for it, precious

days or weeks would be lost, resulting in collective members having inadequate time to respond to

the notice.

E. Plaintiff’s Proposed Notice and Reminder Postcard Should Be Mailed, E-Mailed, and Posted

Plaintiff asks the Court to authorize Plaintiff to disseminate the Notice by: 1) sending the

form of Notice attached as Exhibit “D” by mail to the collective members last known addresses,

with permission to re-mail if the notice is returned as undeliverable, 2) sending it by e-mail,

attached as Exhibit “E”, to workers for whom Defendants can provide personal e-mail addresses,

3) sending the Reminder Postcard attached as Exhibit “F” before the end of the opt-in period to

collective members who have not responded after the mailing of the initial notice, and 4)

authorize Plaintiff to make reminder calls shortly before the end of the opt-in period to collective

members who have not responded after the mailing of the initial notice. The Court should also

authorize the proposed notice and reminder post-card to be translated to Spanish for distribution

in Spanish and English to collective members with Spanish surnames. Lastly, the Court should

also authorize Plaintiff’s request to post the notice on the employee notice board or alternatively


16

in a prominent location within the employer’s offices where current collective members can see

it.

1. Email

Mailing of notice is the routine method for delivering notice. However, this means is not

foolproof, particularly with a period extending over many years. Mailed notice may not reach

every collective member for a wide variety of reasons. First, workers move and forwarding

addresses are often not provided to the post office (and forwarding orders only last a year even

when they are filled out). Yet, here, notice extends back three years, which is already far longer

than forwarding orders last. Second, some workers may not be home during the notice period

(away in home care assignments in clients’ homes, traveling, military service, etc.). Third,

important mail is hard to distinguish from junk mail and many notices are simply thrown out

without ever being opened. Fourth, mail intended for a collectives member may be inadvertently

misplaced or discarded by others who bring the mail in, such as kids or others living at the same

address. Fifth, mail can be mis-delivered. Mail notice is an important component of the “best

practicable notice,” but it is hardly foolproof and there is no reason to limit delivery to a single

means. In this age of ubiquitous electronic communication dissemination of notice through e-

mail is an important adjunct to a comprehensive notice delivery scheme:

In the present age, however, communication through email is the norm, and the Court does not view the disclosure of email addresses to class counsel as being unduly intrusive on the privacy and personal interests of class members. See Pippins v. KPMG LLP, No. 11 Civ. 377(CM)(JLC), 2012 WL 19379, at *14 (S.D.N.Y. January 3, 2012) (“[G]iven the reality of communications today ... the provision of email addresses and email notice in addition to notice by first class mail is entirely appropriate”); Lujan v. Cabana Mgmt., Inc., No. 10 Civ. 755(ILG), 2011 WL 3235628, at *3 n. 3 (E.D.N.Y. July 27, 2011) T]he Court sees email as a relatively unobtrusive option” for providing notice to class members); Gambino v. Harvard Protection Servs. LLC, No. 10 Civ. 0983 (PAC), 2011 WL 102691, at *2 (S.D.N.Y. Jan. 11, 2011) (“Defendant is directed to


17

produce, in a computer readable format, the names and last known mailing addresses, and alternate addresses, telephone numbers, last known email addresses, and dates of employment for all Defendant's employees ....”).

In re Deloitte & Touche, LLP Overtime Litig., 11-cv-2461 RMB THK, 2012 WL 340114

(S.D.N.Y. Jan. 17, 2012). Courts around the country have recognized e-mail as an appropriate

means to disseminate notice. Butler v. DirectSAT USA, LLC, 876 F. Supp. 2d 560, 575 (D. Md.

2012) (authorizing notice of collective action by mail and e-mail to potential plaintiffs “likely to

be ... comfortable communicating by email.”); Woods v. Vector Mktg. Corp., C-14-0264 EMC,

2015 WL 1198593, at *7 (N.D. Cal. Mar. 16, 2015) (granting request to send notice via email);

Bazzell v. Body Contour Centers, LLC, C16-0202JLR, 2016 WL 3655274, at *7 (W.D. Wash.

July 8, 2016) (same). E-mailing notice here is appropriate. Atkinson v. TeleTech Holdings, Inc.,

2015 U.S. Dist. LEXIS 23630, at *12 (S.D. Ohio February 26, 2015); Petty v. Russell Cellular,

Inc., 2014 U.S. Dist. LEXIS 42185, at *16 (S.D. Ohio March 28, 2014).

2. Post Card Reminders

In addition to mailing the notice, a post-card reminder is generally sent shortly before the

end of the opt-in period. Courts have routinely approved the sending of follow-up postcard

reminders. Such follow-up mailing contributes to dissemination among similarly situated

employees and serves what the Supreme Court in Hoffmann-La Roche recognizes as section

216(b)’s “legitimate goal of avoiding a multiplicity of duplicative suits and setting cutoff dates to

expedite disposition of the action.” 493 U.S. at 172. The reminder also serves the purpose “to

inform as many potential plaintiffs as possible of the collective action and their right to opt-in”.

Chhab v. Darden Restaurants, Inc., 11-cv-8345, 2013 WL 5308004, *16 (S.D.N.Y. Sept. 20,

2013). Accordingly, courts have regularly approved the sending of a reminder notice to

collective members who have not responded after the mailing of the initial notice. See, e.g.,


18

Helton v. Factor 5, Inc., C 10–04927 SBA, 2012 WL 2428219, *7 (N.D. Cal. June 26, 2012);

Graham v. Overland Solutions, Inc., 10 Civ. 672 BEN (BLM), 2011 WL 1769737, *4 (S.D. Cal.

May 9, 2011); Chhab v. Darden Restaurants, Inc., 2013 WL 5308004 at *16 (approving

reminder letter); Guzelgurgenli v. Prime Time Specials Inc., 883 F. Supp. 2d 340, 357-8

(E.D.N.Y. 2012) (listing cases); Helton v. Factor 5, Inc., 10 Civ. 04927, 2012 WL 2428219, *7

(N.D. Cal. June 26, 2012) (approving post card reminder); In re Janney Montgomery Scott LLC

Financial Consultant Litigation, 06-Civ.-3202, 2009 WL 2137224 (E.D. Pa. July 16, 2009)

(same); Hart v. U.S. Bank NA, 12-cv-2471-PHX-JAT, 2013 WL 5965637 (D. Ariz. Nov. 8,

2013); Morris v. Lettire Const., Corp., 896 F. Supp. 2d 265, 275 (S.D.N.Y. 2012) (“Given that

notice under the FLSA is intended to inform as many potential plaintiffs as possible of the

collective action and their right to opt-in, we find that a reminder notice is appropriate.”);

Sanchez v. Sephora USA, Inc., No. 11–CV–3396, 2012 WL 2945753, at *6 (N.D. Cal. July 18,

2012) (“courts have recognized that a second notice or reminder is appropriate in an FLSA

action since the individual is not part of the class unless he or she opts-in”); Gee v. SunTrust

Mortg., Inc., No. 10–CV–1509, 2011 WL 722111, at *4 (N.D. Cal. Feb. 18, 2011); Harris v.

Vector Mktg. Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal. 2010) (“Particularly since the FLSA

requires an opt-in procedure, the sending of a postcard is appropriate.”). The Reminder Postcard

here (Ex. “F”) is appropriate. See Gascho v. Global Fitness Holdings, LLC, 2014 U.S. Dist.

LEXIS 46846, at 17 (S.D. Ohio April 4, 2014); See also Kidd v. Mathis Tire & Auto Serv., 2014

U.S. Dist. LEXIS 142164, at *6 (W.D. Tenn. Sept. 18, 2014).

3. Reminder Calls

In addition to the mailing the post-card reminder, a reminder call to collective members

who have not responded to the initial notice is appropriate given the characteristics of the

workforce the notice is intended to reach. Mailing a post-card reminder might not be sufficient to


19

reach unresponsive home care workers that are often engaged in care assignments away from

their homes. A scripted reminder call, following the proposed language of the Reminder Postcard

attached as Exhibit “F” is also appropriate. Marshall v. Deutsche Post DHL & DHL Express

(USA) Inc., 2015 U.S. Dist. LEXIS 125869 (E.D.N.Y. September 21, 2015); Jones v. Cretic

Energy Servs., LLC, 149 F. Supp. 3d 761, 776 (S.D. Tex. Dec. 9, 2015)(Plaintiffs allowed to

send reminder notices via mail, email and telephone calls).

4. Posting

Lastly, posting of notice by Defendants where it can be seen by current workers also

contributes to dissemination among similarly situated employees. District courts around the

country have recognized posting (in addition to mailing) as an efficient, non-burdensome method

of notice that courts regularly employ. See Sherrill v. Sutherland Global Servs. Inc., 487 F. Supp.

2d 344, 351 (W.D.N.Y. 2007) (allowing notice to be posted at defendant’s places of business for

90 days and mailed to all Collective members); Castillo v. P & R Enterprises, Inc., 517 F. Supp.

2d 440, 449 (D.D.C. 2007) (ordering notice posted in “(1) Defendant’s offices, or (2) office

spaces designated for Defendant’s use in third-party buildings”); Romero v. Producers Dairy

Foods, Inc., 235 F.R.D. 474, 492-93 (E.D. Cal. 2006) (finding that posting of notice in

workplace and mailing is appropriate and not punitive); Veliz v. Cintas, No. C 03-1180 SBA,

2004 WL 2623909 at *2 (N.D. Cal. 2004) (citing court order to post notice in all workplaces

where similarly situated persons are employed); Garza v. Chicago Transit Authority, No. 00 C

0438, 2001 WL 503036 *4 (N.D. Ill. May 8, 2001) (ordering defendant to post notice in all of its

terminals); Johnson v. American Airlines, 531 F. Supp. 957, 961 (S.D. Tex. 1982) (finding that

sending notice by mail, “posting on company bulletin boards at flight bases and publishing the

notice without comment in American’s The Flight Deck, are both reasonable and in accordance

with prior authority”); Frank v. Capital Cities Communications, Inc., 88 F.R.D. 674, 679


20

(S.D.N.Y. 1981) (requiring defendant to “permit the posting of copies of public bulletin boards at

FP offices”); Soler v. G&U, Inc., 86 F.R.D. 524, 532-532 (S.D.N.Y. 1980) (authorizing plaintiffs

to “post and mail the proposed notice of pendency of action and consent to sue forms”).

A copy of the notice Plaintiff proposes to mail, email and post to collective members are

attached to this motion as Exhibits “D” and “E” and a copy of the proposed postcard reminder is

attached as Exhibit “F”. This notice informs collective members in neutral language of the nature

of the action, of their right to assert FLSA claims by filing a consent to sue form with the Court,

and the consequences of their joining or not joining the action. The form of this notice is

consistent with numerous other notices issued by this Court.

V. EXPEDITED CONSIDERATION IS APPROPRIATE

Plaintiff further requests expedited consideration of her certification motion and

expedited production of information for notice. “Sending notice to potential class members early

in a case facilitates the broad remedial purpose of the FLSA and promotes efficient case

management.” Id. In FLSA collective actions―unlike Rule 23 class actions―the statute of

limitations for the FLSA claims of potential opt-in plaintiffs is not tolled by a plaintiff’s initial

filing of the complaint.4 29 U.S.C. § 256(b). Thus, delay in disseminating notice to potential

plaintiffs can prejudice their rights. See Gortat v. Capala Bros., Inc., No. 07-cv-3629, 2010 WL

1423018, at *9 (E.D.N.Y. Apr. 9, 2010) (“Because the statute of limitations for FLSA claims

continues to run for each individual plaintiff until he or she opts in . . . early certification and

notice are favored in order to protect plaintiffs’ rights.”); accord Smith v. Lowe’s Companies,

Inc., No. 2:04-cv-774, 2005 WL 6742234, at *3-4 (S.D. Ohio May 11, 2005) (Because “statute

of limitations period continues to run against each potential class member . . . it is widely

4 Plaintiff has also asserted claims under state law which are not the subject of this Motion. Ohio Re. Code Ann § 4111.01 et seq.; Ohio Prompt Pay Act, Ohio Rev. Code Ann. § 4113.15.


21

accepted that, at the notice stage . . . [that] the plaintiff’s burden . . . is extremely light.”)

(emphasis added). Accordingly, Plaintiff as the Court to adopt the following deadlines and

notice plan:

DEADLINE DESCRIPTION OF DEADLINE

7 Days From Order Approving Notice to Potential Collectives Members

Defendant to produce the names, last known addresses, e-mail addresses, phone numbers and dates of employment of the Putative Collective Members in a usable electronic format.

30 Days From Order Approving Notice to Potential Collective Members

Plaintiff’s Counsel shall send by mail and e-mail a copy of the Court approved Notice and Consent Form to the Putative Collective Members. See Ex. “D” and “E”. Defendant is required to post the Notice and Consent forms at its facilities for 60 days in an open and obvious location.

90 Days From Date Notice is Mailed to Potential Collective Members

The Putative Collective Members shall have 90 days to return their signed Consent forms for filing with the Court. Defendant may take down the posted Notice and Consent forms.

30 Days from Date Notice is Mailed to Potential Collective Members

Plaintiffs’ Counsel is authorized to send by mail and e-mail a Reminder Postcard to the Putative Collective Members reminding them of the deadline for the submission of the Consent forms. See Ex. “F”. Plaintiff shall follow up with all those Putative Collective Members who have not returned their Consent forms with a phone call to ensure receipt of the Notice packet.


22

VI. EQUITABLE TOLLING Should the Court grant the instant motion, Plaintiff respectfully requests that, to avoid

inequitable circumstances, the FLSA statute of limitations be tolled until 90 days from the date

notice is sent to potential opt-in plaintiffs. Courts have discretion to toll a statute of limitations as

necessary “to prevent inequity.” Struck v. PNC Bank N.A., 931 F. Supp. 2d 842, 846-49 (S.D.

Ohio 2013). Other courts have tolled the statute of limitations for potential opt-in FLSA

plaintiffs. See Kampfer v. Fifth Third Bank, 2016 U.S. Dist. LEXIS 37056, *20 (N.D. Ohio Mar.

22, 2016); Baden-Winterwood v. Life Time Fitness, 484 F.Supp.2d 822 (S.D. Ohio 2007); Engle

v. Burlington Coat Factory Direct Corp., 2013 U.S. Dist. LEXIS 130513 (S.D. Ohio

2013); Thompson v. Direct General Consumer Products, Inc., 2014 U.S. Dist. LEXIS 28912

(M.D. Tenn. 2014).

The Sixth Circuit has articulated five factors to guide courts in determining whether

equitable tolling should apply in a particular case:

(1) the petitioner's lack of [actual] notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim.

Struck II, 931 F.Supp.2d at 846, citing Cook v. Comm'r of Social Security, 480 F.3d 432, 437

(6th Cir. 2007). Like the plaintiffs in Struck, the potential opt-in plaintiffs in the present case do

not have actual notice of this case. Id. at 846. Further, Plaintiff has filed for conditional

certification less than three months after commencing this action. Id. at 847 (noting that

plaintiffs filed motion four months after filing complaint). Defendants will not be prejudiced by

the tolling of the statute of limitations, because they “had full knowledge that the named Plaintiff

brought the suit as a collective action on the date of filing” and were “fully aware of its scope of


23

potential liability.” Id. at 848. Finally, “it is entirely reasonable that putative class members who

received no actual notice of the pendency of this action would remain ignorant of the filing

deadline.” Id. at 848.

VII. RELIEF SOUGHT

For the foregoing reasons, Plaintiff respectfully requests that this Court conditionally

certify this case as a collective action and enter an order:

1) requiring Defendants to provide Plaintiff, in electronically readable form, the names,

addresses, e-mail addresses, any employee number or unique identifier of all collective

members within seven (7) days of the entry of the Order;

2) requiring Defendants to provide Plaintiff, in electronically readable form, the dates of

birth, telephone numbers, and last four digits of the social security numbers of anyone

whose notice is returned as undeliverable;

3) conditionally certifying this action as an FLSA collective action for the collective defined

as “All current or former home healthcare workers employed by Caregivers for

Independence, James Couch, Phyllis Couch and James Couch, II, and/or any of its or

their affiliated entities who were not paid overtime wages for all hours worked over 40 in

a work week at any time since September 23, 2013”;

4) authorizing a 90-day opt-in period;

5) authorizing Plaintiff to issue the notice (attached as Ex. “D”) by mail, and e-mail

(attached as Exhibit “E”) within thirty (30) days of the entry of the Order;

6) requiring Defendants to post the notice in a conspicuous place in their offices within

thirty (30) days of entry of the Order;


24

7) authorizing Plaintiff counsel to re-mail notices that are returned as undeliverable for those

individuals counsel can find better addresses;

8) permitting Plaintiff counsel to call any individual whose notice is returned as

undeliverable for the purpose of obtaining a current address for re-mailing of the notice;

9) permitting the mailing of the reminder postcard attached as Exhibit “F”, thirty (30) days

before the expiration of the opt-in period;

10) authorizing Plaintiff counsel to make scripted reminder calls, following the language of

the proposed reminder postcard attached as Exhibit “F”, thirty (30) days before the

expiration of the opt-in period; and

11) equitable tolling for a period of ninety (90) days from the day the notice is mailed.

Respectfully submitted, /s/ Andrew Kimble

Andrew Kimble KIMBLE LAW 165 Old Henderson Road Columbus, Ohio 43220 Telephone: (614) 983-0361 Facsimile: (614) 448-9408 Email: [email protected]

Philip Bohrer, Esq. (pro hac vice) Scott E. Brady, Esq. (pro hac vice) BOHRER BRADY LLC 8712 Jefferson Highway, Ste. B Baton Rouge, LA 70809 Tel: 225-925-5297 Fax: 225-231-7000 E-mail: [email protected] E-mail: [email protected]

Attorneys for Plaintiff and the Putative Collective


25


26

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will send notice of electronic filing to all counsel registered in this case. Any counsel not registered for electronic notice of filing with the Clerk of Court will be mailed a copy of the above and foregoing, First Class U.S. Mail, postage prepaid and properly addressed. /s/ Andrew Kimble Andrew Kimble


united states district court western...

Documents