United States District Court, E.D. Missouri, Eastern Division
CHRISTINA MAYBERRY, et al., individually and on behalf of others similarly situated, Plaintiffs,
v.
SSM HEALTH BUSINESSES, d/b/a SSM HOME CARE and/or SSM HEALTH AT HOME, Defendant.
MEMORANDUM AND ORDER
CAROL
E. JACKSON, UNITED STATES DISTRICT JUDGE
This
matter is before the Court on the motion of plaintiff
Christina Mayberry to conditionally certify a collective
action under the Fair Labor Standards Act (FLSA), 29 U.S.C.
§ 216(b). Defendant SSM Health Businesses has filed a
response in opposition and the issues are fully briefed.
I.
Background
Plaintiff
brings this action to recover unpaid overtime and unpaid
wages under the FLSA and the Missouri Minimum Wage Law
(MMWL), Mo. Rev. Stat. § 290.527. Cleo Mayfield, Janice
Tainter, and Rhonda McKinnon have opted in as party
plaintiffs. Plaintiff alleges that she and other hourly-paid
home healthcare workers employed by defendant in Missouri,
Illinois, and Oklahoma were subjected to a policy or practice
that required them to work “off the clock, ”
without pay. Plaintiff seeks to conditionally certify a
collective action under 29 U.S.C. § 216(b). The proposed
class would include all current and former hourly-paid home
healthcare workers employed at any time within the last three
years at defendant's St. Louis and St. Louis West branch
locations.
II.
Legal Standard
Section
7 of the FLSA prohibits an employer from subjecting
non-exempt employees to a work week in excess of 40 hours
unless the employee is compensated for overtime worked at a
rate of at least one and one half his or her regular hourly
wage. 29 U.S.C. § 207. Any employer who violates this
restriction “shall be liable to the employee or
employees affected in the amount of their ... unpaid overtime
compensation ... and in an additional equal amount as
liquidated damages.” 29 U.S.C. § 216(b). Section
216(b) provides that a plaintiff may bring suit under the
FLSA “for and in behalf of himself or themselves and
other employees similarly situated.” 29 U.S.C. §
216(b). However, an employee does not become a party to the
suit “unless he gives his consent in writing to become
such a party and such consent is filed in the court in which
such action is brought.” Id.
The
Eighth Circuit has not adopted a procedure for determining
whether a group of employees is similarly situated or for
obtaining the consent of those employees, but this Court has
consistently employed the two-step process applied by the
other circuits that have considered the issue. See,
e.g., Beasely v. GC Services LP, 270 F.R.D.
442, 444 (E.D.Mo.2010); Simmons v. Enter. Holdings,
Inc., 2011 WL 855669, at *2 (E.D.Mo.2011); Ondes v.
Monsanto Co., 2011 WL 6152858 (E.D.Mo.2011).
“Under this two-step process, the plaintiff first moves
for class certification for notice purposes...[o]nce the
Court conditionally certifies the class, potential class
members are given notice and the opportunity to
‘opt-in.'” Kautsch v. Premier
Commc'ns, 504 F.Supp.2d 685, 688 (W.D.Mo.2007).
“At the second step of the process, the defendant may
move to decertify the class. This is typically done after the
close of discovery when the Court has much more information
and is able to make a more informed decision.”
Id.
Because
the preliminary certification is made with limited
information and is conditional in nature, the
“plaintiff's burden is not onerous.”
Dernovish v. AT&T Operations, Inc., 2010 WL
143692 (W.D. Mo. Jan. 12, 2010). “There is no need to
show that the would-be members of the class are actually
similarly situated or that they are identical, but the
plaintiff must present some evidence to demonstrate the class
members are similar in important respects and are subjected
to similar policies or circumstances.” Id.
(citing Huang v. Gateway Hotel Holdings, 248 F.R.D.
225, 227 (E.D. Mo. 2008); see also Kautsch, 504
F.Supp.2d at 689. In other words, plaintiff must produce
“nothing more than substantial allegations that the
putative class members were together the victims of a single
decision, policy or plan.” Davis v. NovaStar
Mortg., Inc., 408 F.Supp.2d 811, 815 (W.D. Mo. 2005).
III.
Discussion
In
support of the motion for conditional certification, Mayberry
submits her declaration and the declarations of the opt-in
plaintiffs. The declarations are identical in terms of the
allegations made against the defendant. The declarants state:
(1) they were hourly-paid home healthcare workers working out
of defendant's St. Louis or St. Louis West branch, (2)
they had to perform essential tasks of their job
“off-the-clock, ” (3) plaintiffs' supervisors
were aware of and permitted work to be performed outside of
the regular paid shift, (4) they complained to management
about being unable to complete tasks during the work day and
not being compensated for time worked off-the-clock, (5) they
utilized a defendant-issued laptop for work-purposes before
and after their scheduled shifts, (6) they routinely worked
on and completed charting and patient reports at home
off-the-clock, and (7) they incurred unpaid overtime on a
regular basis.
In
their depositions, Mayberry and the opt-in plaintiffs
testified that: (1) they were employed by defendant as a
full-time, hourly-paid Licensed Practical Nurse (LPN) and
were classified as non-exempt, (2) they worked off-the-clock
before and after work, (3) they were not compensated for
off-the-clock work, (4) there was an expectation that
employees work off-the-clock based on instructions from
supervisors, and (5) complaints were made to supervisors
about uncompensated off-the-clock work. Mayberry testified
that she worked off-the-clock for one to one half hours
before her shift and for two to three hours following her
shift; in total she estimated that she performed an average
of fifteen to twenty hours of off-the-clock work while
employed by defendant. [Doc. #44-5, 124:20-125:11,
142:22-143:2]. McKinnon testified that she worked forty-five
minutes to an hour before her shift and one to two hours
following her shift. [Doc. #44-6, 49:5-8, 76:23-77:1].
Mayfield testified that she performed one to one half hours
of off-the-clock work before her shift, and three to four
hours of off-the-clock work after her shift. [Doc. #44-7,
104:13-23, 107:13-109:5]. Tainter testified that she
typically worked at least one to one half hours off-the-clock
before her shift and one to two hours off-the-clock following
her shift and estimates she worked ten to twenty hours a week
off-the-clock while employed by defendant. [Doc. #44-8,
71:21-72:4, 81:18-22, 82:20-83:2].
The
plaintiff's motion is also supported by documents
obtained through discovery. These documents reflect the times
that Mayberry and the opt-in plaintiffs clocked in and out
for work they performed and provide examples of their
completing work in the mornings prior to clocking in as well
as completing work in the evenings after clocking out, thus
corroborating their declarations and deposition testimony.
[Doc. #44-9].
A.
Conditional Certification
Plaintiff
seeks conditional certification to pursue claims against
defendant for violating the FLSA's requirement to pay
overtime rates for all hours worked in excess of 40 hours per
week. Defendant argues that in cases such as this, where
plaintiff has been afforded discovery on the issue of whether
or not the action should proceed as a collective action, the
Court should apply a more restrictive standard requiring the
plaintiff to demonstrate at least modest factual support for
...