Mayberry v. SSM Health Businesses

          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 ...