Abdullayeva ex rel. Situated v. Attending Homecare Servs., LLC., 17-CV-5951

MEMORANDUM & ORDER

JACK B. WEINSTEIN, Senior United States District Judge

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Contents

I. Background ............................................................................................................................. 2

II. Facts ........................................................................................................................................ 3

A. Complaint ......................................................................................................................... 3

B. Arbitration Agreements .................................................................................................... 4

III. Law ......................................................................................................................................... 7

A. Motion to Compel Arbitration: Standard of Review ........................................................ 7

B. Federal Arbitration Act .................................................................................................... 7

C. Interpretation of Arbitration Agreements ......................................................................... 8

1. Collective Bargaining Agreements ............................................................................... 8
2. FLSA Collective Actions ............................................................................................ 10

IV. Application of Law to Facts .................................................................................................. 11

V. Conclusion ............................................................................................................................ 13

I. Background

Plaintiff, Tatyana Abdullayeva, filed this putative class action alleging that Defendant, Attending Homecare Services, LLC, violated federal and state wage and hour laws. Defendant did not answer the complaint. Instead, it filed a motion to dismiss the complaint or stay the case and compel arbitration because, it claims, a collective bargaining agreement requires that all wage and hour claims of its employees be arbitrated.

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The issue is whether the arbitration clause compels the parties to arbitrate this dispute. It does not. A clause purporting to require arbitration of a Fair Labor and Standards Act ("FLSA") claim that is contained in a collective bargaining agreement must be "clear and unmistakable" to compel arbitration. The clause in this case does not require Plaintiff to arbitrate. Plaintiff and the putative class may pursue their claims in this court rather than arbitrate.

There are four reasons the arbitration clause does not bar this suit.

1) The mediator and arbitrator have been preselected by the parties. See Amendment to Agreement Between the Union and Attending Homecare Services ("Amendment") ¶¶ B(1)-(2), ECF No. 16, Ex. B. Nothing expressly limits this preselection to the Union and employer; it is reasonable to assume that if a worker brought a claim she would be bound to utilize the preselected arbitrator. Since the worker apparently has no part in selection of the arbitrator, the clause denies due process.

2) The employee must request that the Union process her grievance before she can ask for arbitration. Id. at ¶ B(4). She has not, so far as the record shows, requested the Union to process her grievance.

3) The employee "may" submit the claims to arbitration. Id. It does not say "shall." The employee has not submitted the claims to arbitration.

4) Paragraph 4 is at best ambiguous. It must be clear and unmistakable since it contains statutory rights to wages and other benefits. See infra Parts III-IV.

II. Facts

A. Complaint

The allegations in the complaint are summarized below:

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Plaintiff is a home health aide who has been working for Defendant since October 2014. See Compl., at ¶¶ 1, 9, ECF No. 1. Frequently, she worked more that forty hours per week. Id. at ¶ 11. She was always paid $11.00 per hour. Id. at ¶ 20.

From October 2014 until December of that year, Plaintiff generally worked three 12-hour shifts a week, for a total of 36 hours. Id. at ¶ 21. Beginning in January of 2015, she was assigned additional shifts and her weekly hours were greater than 40. Id. She did not receive time-and-a-half for the overtime she worked from January 1, 2015 through October 17, 2015. Id. at ¶ 23. The putative class, too, did not receive additional pay for overtime hours. Id. at ¶ 24.

Plaintiff alleges that she and the class were denied other statutorily required pay; she was denied "spread of hours" pay under 12 N.Y.C.R.R. § 142-2:4, Id. at ¶ 28; she did not receive an extra hours pay on days where she worked more than 10 hours in a day or had non-consecutive hours. Id. at ¶¶ 28-31. From March 1, 2014 through December 30, 2016, she was supposed to receive at least $14.09 per hour under New York law, but only received $11.00. Id. at ¶¶ 40-41.

B. Arbitration Agreements

Defendant entered into an agreement with Home Healthcare Workers of America, Local 1660 ("Union") for a term from May 1, 2016 through April 30, 2019. See Agreement Between the Union and Attending Homecare Services (the "Agreement"), ECF No. 16, Ex. A. The Agreement covers all "full time and regular part time home healthcare aides and personal care aides" working for Defendant. Id. at 1. As originally written, the Agreement contained an arbitration clause:

All disputes, complaints, controversies, claims and grievances arising between the Employer and the Union, (on behalf of any employee) with respect to, concerning or growing out of the interpretation, operation, application, performance or claimed breach of any of the terms and conditions of this Agreement shall be adjusted in accordance with the following [arbitration] procedure.

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Id. at 4-5.

The Union and Defendant executed an amendment to the arbitration clause on April 24, 2017. See Amendment. It contains the same coverage clause that was in the original Agreement and added a second clause reading:

B. The parties further agree a goal of this Agreement is to ensure compliance with all federal, state, and local wage hour law and wage parity statutes. Accordingly, to ensure the uniform administration and interpretation of this Agreement in connection with federal, state, and local wage-hour and wage parity statutes, all claims brought by either the Union or Employees, asserting violations of or arising under the Fair Labor Standards Act ("FLSA"), New York Home Care Worker Wage Parity Law, or New York Labor Law (collectively, the "Covered Statutes"), in any manner, shall be subject exclusively, to the grievance and arbitration procedures described below.

1) The statute of limitations to file a grievance concerning the Covered Statutes shall be consistent with the applicable statutory statute of limitations. All such claims if not resolved in the grievance procedure, including class grievances filed by the Union, or mediation as described below shall be submitted to final and binding arbitration before Elliott Shriftman. If Elliott Shriftman is not available then the matter shall be submitted to Randi E. Lowitt. The Arbitrator shall apply appropriate law and shall award all statutory remedies and penalties, including attorneys' fees, consistent with the FLSA and New York Labor Law in rendering decisions regarding disputes arising under this Article.

2) Whenever the parties are unable to resolve a grievance alleging a violation of any of the Covered Statutes, before the matter is submitted to arbitration, the dispute shall be submitted to mandatory mediation. The parties hereby designate Elliott Shriftman as Mediator for such disputes. If Elliott Shriftman is not available then the matter shall be submitted to Randi E. Lowitt. Such mediation shall be requested no more than thirty (30) calendar days following exhaustion of the grievance procedure. Following submission of the dispute to mediation, the parties with the assistance of the Mediator shall establish such procedures as shall expeditiously advance the mediation process, including the scheduling of the exchange of relevant information, submission of position