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Natasha Severin and Galina Cotova v. Project Ohr

June 20, 2012


The opinion of the court was delivered by: Denise Cote, District Judge


Plaintiffs Natasha Severin ("Severin") and Galina Cotova ("Cotova") bring the above-captioned action on behalf of themselves and a putative class of similarly situated persons who are employed by defendant Project OHR, Inc. ("OHR"), as providers of home health care for the elderly and infirm in and around the City of New York. Plaintiffs allege that OHR failed to pay them and putative class members the minimum wage and overtime, in violation of various provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 206 et seq., and New York Labor Law ("NYLL"), Art. 6 § 190 et seq., and Art. 19 § 650 et seq. The plaintiffs have moved for class certification of their NYLL claims pursuant to Rules 23(a) and 23(b)(3), Fed. R. Civ. P. The motion is denied.


OHR is a nonprofit organization providing home health care services in and around New York City to disabled, frail and elderly individuals who qualify for government assistance. It operates under contract with the New York City Department of Social Services/Human Resources Administration ("HRA"), which refers Medicaid-eligible individuals to OHR and funds OHR's operations. OHR serves clients referred by HRA principally by sending home attendants to provide companionship assistance at clients' residences.

When HRA refers an individual client to OHR for care, HRA provides OHR with a "service authorization" for that client, which authorizes OHR to provide a specific number of hours of care for a specific number of days a week. While some OHR clients are only authorized to receive a few hours of care each week, many are authorized to receive round-the-clock care. OHR assigns home attendants to provide care to an individual client based upon the hours authorized for that client in the client's service authorization.

When a client is assigned by HRA to OHR, an OHR nurse visits the client and develops a "Client Care Plan", which provides guidance for home attendants assisting the client, including setting forth the tasks home attendants are expected to perform for the client. Home attendants may be expected to provide both personal care services and household services on behalf of clients, as described in OHR's "Personnel Policies and Practices for Home Attendants Handbook" ("Home Attendant Handbook"). Personal care services may include assistance with ambulation, bathing, dressing, feeding, personal grooming, toileting, and taking medications. Home attendants may also be expected to escort clients to visit doctors and clinics, and to run errands for clients. Household services that may be required include basic bathroom and kitchen cleaning and tidying, doing the client's laundry, sweeping, vacuuming, and dusting, and taking out trash.

OHR schedules home attendants to work three types of shifts. The first, a regular hourly shift, is a daytime shift that can range from a few hours to 12 hours. The second occurs where HRA has authorized round-the-clock care and supervision.

OHR then schedules a split shift, where one home attendant works a 12-hour daytime shift and a second home attendant works a 12-hour nighttime shift. Home attendants scheduled to a regular or split shift are subject to dismissal for sleeping. The third, which is the only shift at issue in the plaintiffs' minimum wage claim, is a sleep-in shift. During a sleep-in shift, a single home attendant spends 24 hours in the client's residence, but is expected to spend part of that time sleeping. OHR keeps track of the hours worked by home attendants by requiring them to call an "800" number from their clients' home telephones at the start and end of each shift. The data collected by this automated system is fed directly into OHR's payroll.

According to OHR, those home attendants on sleep-in shifts are instructed to take an eight-hour window in which to sleep and to get at least five hours of continuous sleep. The Home Attendant Handbook, distributed to all OHR home attendants, states: "Home attendant employees are prohibited from working more than sixteen hours per day." Blossom King, an OHR home attendant, submitted an affidavit testifying that she and other home attendants were told at their initial orientation and at twice yearly training sessions that on sleep-in shifts they "had at least an eight hour window of sleep and should at least get five hours of sleep without being disturbed by the client." D'Vorah Kohn ("Kohn"), OHR's executive director, testified that OHR "generally assumes [home attendants working sleep-in shifts] work at least during daytime hours. They should work up to twelve hours. They should be sleeping at least five consecutive hours and hopefully more than that, but at least five consecutive." Kohn further testified that OHR's home attendants were reminded of this policy during the twice-yearly training sessions, and that clients and their families are also informed of the policy.

Susan Schaefer ("Schaefer"), OHR's personnel director, testified that the amount of sleep a sleep-in home attendant could get in a night "depends on the patient's care [and]

[q]uality of . . . his condition." Schaefer testified that OHR home attendants were told that on a sleep-in shift it was their responsibility to assist a client if the client awoke during the night; if the client had difficulty sleeping, then the home attendant would have to "help the patient at least once or twice a night." When asked how a sleep-in home attendant was expected to respond if a client required assistance continuously throughout the night, Schaefer testified that home attendants were told to report the problem to the OHR nurse assigned to the client. The nurse could then request that HRA authorize OHR to provide split shift care to the client. Shaefer testified, however, that unless and until such an increase was authorized, the home attendant would have to "try [their] best. That's all we can tell them."

Kohn believes that home attendants on sleep-in shifts generally receive at least five hours of continuous sleep. OHR does not track whether home attendants receive five hours of continuous sleep. Rather, it relies upon its home attendants to report clients' increased restlessness and need for assistance during nighttime hours. According to Kohn, "[a] home attendant can call the office at any time and speak to the personnel specialist or the nurse. Or if they're not available, they can ask to speak to a staff member who can guide them to the right personnel." OHR has a 24-hour call line for home attendants to report problems and ask questions.

Both of the named plaintiffs regularly worked sleep-in shifts in addition to regular hourly shifts. Severin worked as a home attendant for OHR from January 2005 through March 2005, and then from July 2005 through December 2010. Cotova was employed as an OHR home attendant from November 2004 through November 2007. Severin testified that over the course of her employment as an OHR home attendant, she frequently worked multiple sleep-in shifts over the course of a week, sometimes for multiple clients and sometimes for a single client. Severin stated that she had worked with more than a hundred clients while an OHR home attendant. She testified that on a sleep-in shift, "it's practically not possible to sleep," and that OHR gave her "clients who woke up very many times." Severin testified that a specific client had to be turned over in her sleep every two hours to prevent bed sores. According to Severin, she informed an OHR nurse, who "said that we did the right thing, that we were turning her every two hours and that we are good workers." Cotova also testified that when working sleep-in shifts her clients frequently required her assistance during the night.

OHR employs approximately 1700 home attendants to provide service for approximately 1200 clients. As of April 2008, OHR home attendants on regular hourly or split shifts are paid $10/hour for weekdays and $11.25/hour for weekends. Home attendants working sleep-in shifts are paid the equivalent of twelve hours at the regular hourly rate plus a single "per diem" payment of $16.95, or $136.95 for a weekday sleep-in shift and $157.95 for a weekend sleep-in shift.


On December 30, 2010, Severin filed this action. On March 3, 2011, a first amended complaint was filed, which included Cotova's claims. A second amended complaint was filed on May 27 against defendants OHR, the Metropolitan Council on Jewish Poverty ("Met Council"), and Kohn. The defendants moved to dismiss the second amended complaint on June 17. The June 17 motion was denied on September 2, except as to Met Council, which was dismissed from the lawsuit.

On November 4, the plaintiffs moved for partial summary judgment and authorization of FLSA collective action notice. The plaintiffs' November 4 motions for partial summary judgment and collective action notice were denied on the record at a December 16 conference. As to the plaintiffs' motion for collective action notice, the Court stated:

I think it is premature to issue a collective action notice, and I am not sure that one will ever be appropriate in this case. Under the FLSA, the companionship exemption will be a complete bar to liability. The kinds of jobs that the companions hold are individualized. They each have separate patients or clients; they have to tailor their duties -- indeed their hours -- everything to the needs of the individual client; they are working under general protocols and training and supervision that would, if anything, enforce the exemption and not permit a violation of the FLSA.

So the plaintiff would have to establish on an individual plaintiff-by-plaintiff basis that somehow they performed general household work more than 20 percent of the time, and of course any work, household work, that is related to the fellowship, care or protection of their client wouldn't negate the exemption. So there are so many fact-specific inquiries -- what kind of household work was performed; was it related to the fellowship, care and protection of the client; if it was not so directly related such that it could be considered general household work, did it constitute more than 20 percent of the time that the individual spent in that client's home or environment.

So these are very fact-specific inquiries that aren't really susceptible, I think, to a similarly- situated person analysis that would support the issuance of a collective action notice.

On December 8, the defendants moved for summary judgment on Kohn's individual liability. The plaintiffs consented to the ...

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