The opinion of the court was delivered by: Sifton, Senior Judge
Plaintiff Claudia Gayle, individually and on behalf of all others similarly situated, commenced this purported collective and class action on November 7, 2007, alleging that Harry's Nurses Registry, Inc. ("Harry's Nurses") and its principal, Harry Dorvilier ("Dorvilier"), (collectively "defendants") violated provisions of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA") and the New York Minimum Wage Act, N.Y. Labor Law §§ 190 et seq. and 650 et seq. ("MWA") by failing to pay overtime wages.*fn1 Plaintiff seeks overtime premium pay, liquidated damages, reimbursement for amounts withheld from pay as workers' compensation, pre-judgment interest, a permanent injunction, certification of this action as a class action, costs, and attorneys' fees. Now before the Court is the defendants' motion for summary judgment, the plaintiff's cross-motion for partial summary judgment on the issue of liability, and the plaintiff's motion to distribute notice to potential class members. The motion also effectively asks the Court to decide whether plaintiff's action may be maintained as a collective action under the FLSA. For the reasons set forth below, the defendants' motion is denied and the plaintiff's motions are granted.
The following facts are taken from the complaint and the parties' submissions in connection with this motion. The facts are undisputed except as noted.
Structure of Harry's Nurses
Harry's Nurses is a corporation organized under the laws of the State of New York, and has its principal place of business in Queens, New York. Dorvilier is the president and chief executive officer. Plaintiff is a registered nurse and resides in Nassau County, New York.
Harry's Nurses refers temporary healthcare personnel, including Registered Nurses ("RNs") and Licensed Practical Nurses ("LPNs") (collectively, "field nurses") to patients in their private homes in and around New York City. Affidavit of Harry Dorvilier at ¶ 5 ("Dorvilier Aff."). This is Harry's Nurses' only business. Deposition of Harry Dorvilier at 9:16-10:22 ("Dorvilier Dep."). Harry's Nurses has from seven to ten full-time employees, who hold the offices of director of patient services, office manager, accountant, field nurse staffer, homecare nurse staffer, staff coordinator, billing/payroll clerk, and nursing supervisor. Dorvilier Aff. at ¶ 58.
Harry's Nurses maintains a referral list or "registry" of field nurses. Id. at ¶ 6. At any given time, Harry's Nurses may have as many as five hundred field nurses on its referral list. Id. at ¶ 7. In order to be listed on the referral list, a nurse must fill out an application, sit for an interview, consent to a background check, provide documentation that she or he is covered by his or her own liability insurance, possess a valid LPN or RN license, read Harry's Nurses orientation information, and complete a test of basic nursing knowledge. Id. at ¶ 8. Harry's Nurses provides the field nurses with an in-service document pertaining to various basic procedures including emergency and disaster planning, treating a patient with Alzheimer's Disease, the stages of dying, New York State laws regarding proxy decision making power, and hepatitis/HIV information and confidentiality. Id. at ¶ 10. Nurses must certify that they have read and understood this document, which has a blank line for "employee's signature." Id. at 32:22-25, 34:15-20. When field nurses care for patients, they are expected to perform twelve categories of assessments, each category being described with particularity in the documents issued by defendants, and to note their findings in the patient's chart. Id. at 125:23-126:19.
Patients typically come into contact with Harry's Nurses via advertising on the radio and in newspapers, and advertising directed towards social workers and doctors. Dorvilier Dep. at 14:9-18:2. When a client contacts Harry's Nurses seeking a nurse placement, Harry's Nurses generates a pool of field nurses from the referral list whose qualifications it determines best coincide with the needs of the patient. Dorvilier Aff. at ¶ 11. The Nursing Supervisor calls the nurse from the pool to inform her of the placement opportunity, including the hours and number of days of the placement. Id. at ¶ 12. The details of the nursing services to be rendered are determined by the patient's needs and condition. Id. at ¶ 18. If a patient is unhappy with the nurse, the patient may contact Harry's Nurses and ask for a replacement. Id. at ¶ 30. Field nurses have no contractual or economic relationships with patients to whom they are referred through Harry's Nurses. P. Ex. B at 2.
Field nurses on the referral list are not discouraged from holding other jobs. Dorvilier Aff. at ¶ 19-20. Many nurses on the referral list wait days, weeks, or months between placements. Id. at ¶ 26. The nurses commonly work at one or several other jobs, including putting their names on other referral lists. Id. at ¶ 27. Defendants require that field nurses arrange their schedules to avoid conflicts with assignments from Harry's Nurses. Dorvilier Dep. at 110:13-111:12. In the case of a conflict, a nurse may not send another nurse in his or her stead. Id. at 40:18-41:13. A nurse is under no obligation to accept a work placement and may decline at her discretion, without suffering negatively with respect to future placement opportunities. Id. at ¶ 13-14. A nurse must work a full shift rather than a portion of a shift. Dorvilier Dep. at 74:3-75:12.
Within 90 days of the time that a nurse is placed in service by Harry's Nurses, a nursing supervisor goes to the patient's home. Id. at ¶ 2. Affidavit of Cherriline Williams-West at ¶ 1 ("Williams-West Aff."). The supervisor observes and assesses the nurse's skills, including hand washing. Id. She also checks the book of doctor's orders relating to the patient to ensure that the orders regarding medication and dosage are up-to-date. Id. The supervisor or one of her colleagues performs an assessment within 48 hours of the time that Harry's Nurses begins to care for a patient. Id. Harry's nursing coordinator phones the patient at least once per day to verify that the assigned nurse has reported for duty. Id. at 68:19-70:11.
Nursing supervisors are responsible for reviewing assessments performed by nurses in the field. Williams-West Aff. at ¶ 3. Nursing supervisors conduct monthly reviews with the nurses in the field that last 4-5 hours, for which the nurses are not paid. Id; Dorvilier Aff. at 85:2-86:4. Nurses are taught how to perform a proper head-to-toe assessment of the patient, including such things as mental capacity, heart rate, condition of tracheotomy, and sound of the lungs. Id. The supervisor also talks to the nurses about infection control and legal issues in nursing. Id. On occasion, supervisors are accompanied on the inthe-field assessments by vendors of medical equipment or their technicians to assist the supervisor in instructing the nurses on the use of medical equipment. Id.
The nursing supervisor reports to the nursing director.*fn2 Dorvilier Dep. at 28:18-20. The nursing director creates a progress notes form, which must be completed by the nurse and submitted with her time sheet. If any note is "not in compliance," the nursing supervisor directs the nurse to rewrite the note or attend an in-service continuing education session. Id. at 26:25-30:12. After the time sheets and progress notes are turned in, Harry's Nurses pays the nurses a set hourly rate for hours worked. Dorvilier Aff. at ¶ 48.
Approximately 95% of Harry's Nurses' placements are for the care and treatment of Medicaid patients. Id. at ¶ 46. Harry's Nurses follows Medicaid's rules and regulations in all of its business activities. Id. at ¶ 46. Harry's Nurses submits the nurses' time sheets and progress notes to Medicaid on a bi-weekly basis, after which Medicaid pays Harry's Nurses a "reimbursement rate" for the hours worked by field nurses on Medicaid cases.
Id. at ¶ 49. The reimbursement rate for LPNs is currently a fixed rate of $24.00 an hour, regardless of overtime hours worked. Id. at ¶ 52. Harry's Nurses pays LPNs the reimbursement rate less $5.00 per hour for Harry's Nurses' expenses and profit. Id. at ¶ 51.
All field nurses on the referral list are required to carry their own professional liability insurance and each individual nurse is responsible for maintaining his or her professional license. Id. at ¶ 55. Nurses must furnish and maintain their own basic supplies, including a blood pressure meter and stethoscope. Id. at ¶ 57. Nurses must also purchase their own uniforms and pay for their own travel expenses. Id. at ¶ 57.
Field nurses have no investment in defendants' business. Dorvilier Dep. at 43:13-15. A nurse cannot lose money providing services to patients and cannot profit beyond the hourly fee paid. Id. at 43:16-45:13. Harry's Nurses takes charge of billing and collections from the field nurses' patients' insurance carriers; Harry's Nurses pays its nurses promptly regardless of whether the carriers pay promptly. Id. 118:21-120:9. Field nurses are covered by Harry's Nurses' commercial liability insurance policy. Id. at 118:14-20.
Defendants may unilaterally end their association with a field nurse. Dorvilier Dep. at 109:22-110:12. If they do so, they owe the nurse for hours actually worked, but do not owe contract damages. Id. The "Confidentiality of Patient" form generated by defendants states that "[f]ailure to maintain patient confidentiality may lead to discharge." Id. at 108:14-25; P. Ex. P. Nurses applying for a position on the registry acknowledge their understanding that false information on the application may result in discharge. P. Ex. D. at 4. A discharged nurse may not seek employment directly from her patient. P. Ex. H. Other reasons for which a nurse may be discharged include failure to appear for work punctually and at the request of the patient. Dorvilier Dep. at 23:19-24:1, 108:14-25.
Plaintiff's Work Situation
On February 20, 2007, plaintiff entered into a "Memorandum of Agreement" with Harry's Nurses, whereby she agreed to retain Harry's Nurses' services to coordinate placement opportunities. Dorvilier Aff. ¶ 65. Plaintiff's relationship with Harry's Nurses lasted for nine months, until November, 2007. Id. at ¶ 70. Plaintiff agreed that she would be responsible for payment of income taxes for the work performed and that she would carry her own professional liability insurance. Id. Harry's Nurses did not deduct any federal ...