Cruz v. Ultimate Care, Inc.

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MAYRA CRUZ and RAUL HERRERA, individually and on behalf of all other similarly situated persons, Plaintiffs, v. ULTIMATE CARE, INC., Defendant.

No. 22-CV-7520 (AMD) (PK)

United States District Court, E.D. New York

March 29, 2024

DECISION AND ORDER

PEGGY KUO, UNITED STATES MAGISTRATE JUDGE:

Mayra Cruz and Raul Herrera (together, “Plaintiffs”) brought this action, on behalf of themselves and all other similarly situated persons, against Ultimate Care, Inc. (“Defendant”), seeking relief based on Defendant's alleged violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and New York Labor Law (“NYLL”) §§ 650 et seq. (See Am. Compl., Dkt. 48.) Before the Court is Plaintiffs' motion to have this matter proceed conditionally as a collective action, pursuant to 29 U.S.C § 216(b), and to approve and authorize the dissemination of their proposed notice advising members of the collective of their right to opt in to this action. (Plaintiffs' Motion for FLSA Conditional Certification and Issuance of Notice to the Collective (“Motion”), Dkt. 49.) Defendant opposes the Motion.

For the reasons stated herein, the Motion is granted with slight modifications to the proposed notice and consent to sue forms, as noted below.

BACKGROUND

Defendant is a licensed home care services agency that provides home healthcare services to elderly, ill, and disabled individuals. (Compl. ¶ 16; see, e.g. Declaration of Mayra Cruz (“Cruz Decl.”) ¶ 3, Dkt. 49-12.) To care for its patients, Defendant hired home health aides (“HHAs”), such as Plaintiffs. (See Compl. ¶¶ 4, 16-17; Cruz Decl. ¶ 2.) Defendant's HHAs had the “same job responsibilities” which included assisting with everyday activities such as bathing, using the restroom, and getting dressed; helping with household chores such as doing laundry and running errands; and providing basic patient care such as transferring patients from location to location and reminding patients to take medications. (Cruz Decl ¶¶ 10-11; see Compl. ¶¶ 26-27.) Plaintiffs worked as live-in HHAs who worked multiple 24-hour shifts a week, during which they remained in the patients' residences for 24 hours. (Compl. ¶¶ 32-34, 36, 39; see, e.g., Cruz Decl. ¶¶ 7, 29.)

Defendant paid its live-in HHAs minimum wage for 13 hours of each 24-hour shift worked; they were not paid for 11 of the 24 hours despite being required to remain in patients' residences for the full 24 hours. (Compl. ¶¶ 35, 37; see, e.g., Cruz Decl. ¶ 29.) This was because HHAs were allotted eight hours of unpaid sleep time, five of which were to be uninterrupted, and three hours of unpaid mealtime per 24-hour shift. (Compl. ¶ 57; see, e.g., Cruz Decl. ¶ 19.) The plans of care that Defendant implemented for its patients, however, did not provide for an eight-hour sleep period. Instead, HHAs “were forced to sleep when able, at different times each shift, depending upon the circumstances that existed each shift.” (Compl. ¶¶ 42-43; see, e.g., Cruz Decl. ¶ 18-22.) In fact, it was “common knowledge among Ultimate Care employees that home health aides did not sleep through the night, and that was a basic part of the job.” (Compl. ¶ 54.) Moreover, HHAs did not actually receive three hours of mealtime, as they “regularly worked through or during [their] meal breaks.” (Compl. ¶¶ 75-77, 79-80, 82; Cruz Decl. ¶ 14-16.)

HHAs clocked in and out of their shifts and logged tasks they completed using a phone reporting system, and, thereafter, a phone application. (Compl. ¶¶ 60-61, 97; see, e.g., Cruz Decl. ¶ 12.) The reporting system and the application did not have codes for sleep or meal periods, leaving HHAs without a means of reporting interrupted sleep or meal periods. (Compl. ¶¶ 62, 81, 84, 99; see, e.g., Cruz Decl. ¶ 13.) As a result, HHAs complained to their supervisors about working through these breaks. (Compl. ¶¶ 65-67, 85, 101; see, e.g., Cruz Decl. ¶ 26.) However, Defendant made no changes to ensure that it accurately tracked HHAs' actual hours worked. (Compl. ¶¶ 67, 101; see, e.g., Cruz Decl. ¶ 26.)

Despite knowing that its HHAs worked through their allotted sleep and mealtime periods, Defendant did not pay them for any portion of their interrupted sleep and mealtime periods. (Compl. ¶¶ 56, 74, 78, 82-83; see, e.g., Cruz Decl. ¶¶ 16, 24-26.) Moreover, taking into account these unpaid hours, HHAs regularly worked over 40 hours per week, but were not paid overtime wages for hours worked over 40. (Compl. ¶¶ 86-96; see, e.g., Cruz Decl. ¶ 27.)

DISCUSSION

I. Conditional Certification of Collective Action

A. Legal Standard

The FLSA permits employees to assert claims on behalf of themselves and “other employees similarly situated.” 29 U.S.C. § 216(b). Approval of a collective action requires two steps. See D'Angelo v. Hunter Bus. Sch., Inc., No. 21-CV-3334 (JMW), 2023 WL 4838156, at *8 (E.D.N.Y. July 28, 2023) (citing Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)). First, at the conditional certification stage, the court makes “an initial determination to send notice to potential opt-in plaintiffs who may be ‘similarly situated' to the named plaintiffs with respect to whether a FLSA violation has occurred.” Myers, 624 F.3d at 555. Second, typically after the completion of discovery, the Court makes renewed factual findings to determine whether “the plaintiffs who opted in are actually similarly situated to the named plaintiffs.” D'Angelo, 2023 WL 4838156, at *8 (citation omitted).

The Motion concerns only the first step. At this stage, a plaintiff has a “low burden to ‘make a modest factual showing that they and potential opt-in plaintiffs together were victims of a common policy or plan that violated law.” Lopez v. Paralia Corp., No. 16-CV-6973 (SLT)(PK), 2018 WL 582466 (E.D.N.Y. Jan. 26, 2018) (citing Myers, 624 F.3d at 555). “Prospective members of the collective need not be identically situated to the named plaintiff or to each other.” Ruiz v. Nationwide Ct. Servs., Inc., No. 18-CV-6559 (LDH)(RML), 2021 WL 1108635, at *2 (E.D.N.Y. Mar. 23, 2021). Indeed, “the issue of ‘similarly situated' refers not to similarity of job duties, but to similarity in pay structure.” Walston v. Edward J. Young, Inc., No. 15-CV-457 (LDW)(AYS), 2016 WL 3906522, at *5 (E.D.N.Y. Feb. 22, 2016). Although this modest factual showing must be “based on some substance,” it remains “a low standard of proof.” McGlone v. Contract Callers, Inc., 867 F.Supp.2d 438, 443 (S.D.N.Y. 2012) (citations omitted); see also Myers, 624 F.3d at 555. This burden can be met “by relying on [a plaintiff's] own pleadings and affidavits, or affidavits of potential members of the collective action.” Anjum v. J.C. Penney Co., No. 13-CV-460 (RJD)(RER), 2015 WL 3603973, at *5 (E.D.N.Y. June 5, 2015) (internal quotation marks and citations omitted); see also Walston, 2016 WL 3906522, at *5 (“it is well-recognized that the burden at the conditional certification stage is so low that Plaintiff's lone affidavit setting forth a common payment scheme may suffice”). “At this point in the litigation, the court may not consider defendant['s] factual denial of plaintiff[s'] allegations,” as it is “well settled that at this procedural stage, the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.” Ruiz, 2021 WL 1108635, at *2 (cleaned up).

B. Analysis

Plaintiffs seek to conditionally certify a collective comprised of:

All current or former home health aides employed by Ultimate Care, Inc. who worked two or more 24-hour shifts in one or more weeks at any time within the three years preceding the filing of a consent to sue, and worked through meal and/or sleep periods but were not paid for the time.

(Pls. Mem. at 1, Dkt. 49-1.) Plaintiffs assert that they have satisfied their burden by submitting their own declarations and the declarations of 13^[1] opt-in plaintiffs corroborating their allegations that they “were all victims of Ultimate Care's policy or plan that denied them overtime wages for hours worked during meal and sleep periods.”^[2] (Pls. Mem. at 9-11.) These declarations contend that Plaintiffs and other HHAs performed the same job duties, worked multiple 24-hour live-in shifts during the workweek, were paid New York minimum wage for 13 of those 24 hours and were not paid for the remaining 11 hours, were not scheduled sleep periods by Defendant, were not tracked by Defendant with respect to whether they took sleep and/or meal breaks, were not provided a method of recording whether they took meal and/or sleep breaks, worked during their meal breaks and/or sleep periods but were not paid for that work, frequently worked over 40 hours each week without being paid overtime, and complained to their supervisors about their working through sleep and meal breaks but were ignored. (See, e.g., Cruz Decl. ¶¶ 7, 10-21, 24-27, 29; Declaration of Nayra Bernardez (“Bernardez Decl.”) ¶¶ 7, 10-20, 22-25, 27-28, Dkt. 49-9.) In addition, Plaintiffs have submitted paystubs given by Defendant to some of the HHAs corroborating the declarations' assertions and indicating that they were paid in a similar manner. (See, e.g., Ex. A to Bernardez Decl. at 12 (ECF pagination), Dkt. 49-9; Ex. A to Declaration of Raul Herrera (“Herrera Decl.”) at 11 (ECF pagination), Dkt. 49-15.)

Defendant contends that the collective should not be certified. First, Defendant asserts that Plaintiffs have “failed to identify any illegal policy or practice” making it liable under the FLSA, arguing that its policies with respect to HHAs set forth in its employe handbook comport with law. (Def. Mem. at 5-6.)

“At the conditional certification stage, courts should not weigh the merits of the underlying claims.” Severino v Avondale Care...