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Conditional Class Certification Granted for "Similarly Situated" Ohio Home Health Care

In Lawrence v. Maxim Healthcare Servs., Inc., 2013 WL 5566668 (October 9, 2013), the Northern District of Ohio granted conditional class certification for an FLSA class consisting of "all hourly in-home health care workers employed by Defendant at any time in the past three years." Plaintiff alleges that she and a class of "similarly situated" home health care providers worked over forty hours a week doing a variety of domestic and health related duties but were not paid the statutorily required overtime rate of one and one half times the hourly wage. Under FLSA, Plaintiffs are similarly situated when they can prove that their "position is similar, not identical, to the positions held by the putative class members."

Under the FLSA, plaintiffs can show they are similarly situated to putative class members by using a two-phase test. The first phase of the test occurs at the beginning of discovery. Unlike class actions brought under Rule 23 where class members opt out of the class, under the FLSA putative class members must opt-in to the class. This first phase of the test therefore assesses whether putative class members are similarly situated in order to determine whether they should receive notice that they may join the class. But, with only limited evidence available, the Sixth Circuit has established a very low-threshold burden for showing that class members are similarly situated at this preliminary stage. The court has held plaintiffs must only make a modest factual showing that: (1) "the putative class members were the victims of a single decision, policy or plan"; and (2) that there is a "factual nexus between the plaintiffs and the potential class members."

Once this notice phase has commenced, after all putative class members have opted in, and discovery has concluded, then the court will undertake a more rigorous analysis of whether members are in fact similarly situated. If so, and class members are not exempt, the suit will proceed to trial. If class members are found not to be similarly situated, or class members are found to fall under one of the FLSA exemptions, the class will be decertified and opt-in plaintiffs will be dismissed.

Defendants in Lawrence v. Maxim Healthcare Servs., Inc., argued that plaintiffs could not meet even the low burden for the assessment of whether workers were similarly situated because home health care workers were in no way performing identical duties in each home based on the "highly individualized" needs of each patient and the individualized policies and programs in each state. In addition, defendants alleged that some workers falling under the class definition would be managers, not hourly workers, and thus not similarly situated because the managers would fall under FLSA exemptions. Defendant also argued that the home health care workers were not due overtime pay because they were providing companionship services to the patients, an exempt status under the FLSA.

The court held, however, that based on Sixth Circuit precedent, that as long as plaintiffs can show that putative class members all suffered a common FLSA statutory violation based on a defendant's policy, then neither individual job descriptions nor different job titles mattered at the first phase. The court found that the plaintiff had offered enough evidence to show that she and the two other declarants were not paid overtime, and that other putative class members "who performed the same duties were not paid overtime." As such, the class was conditionally certified and defendants were ordered to provide discovery so that putative class members could be provided notice of their right to opt in.

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