United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY, Chief District Judge.
Six Plaintiffs commenced this putative collective/class action on May 22, 2008, claiming that Defendants, a health care network and certain of its officers and member entities, violated the: Fair Labor Standards Act ("FLSA"), New York Labor Law ("NYLL"), Employee Retirement Income Security Act ("ERISA"), Racketeering Influenced Corrupt Organizations Act ("RICO"), and New York common law by failing to pay hourly employees for all hours worked and/or overtime for hours worked over 40 per week.
There are four motions presently before the Court: (1) Plaintiffs' motion for Rule 23 class certification (Docket No. 408), (2) Defendants' motion to strike Plaintiffs' motion for certification of a "rounding" class (Docket No. 427), (3) Defendants' motion for summary judgment dismissing certain of the New York minimum wage order and labor law claims of Plaintiffs Gordon, Mika and Thomson (Docket No. 431), and (4) Plaintiffs' motion for partial summary judgment (Docket No. 474).
For the reasons stated below, Plaintiffs' motions are denied and Defendants' motions are granted.
A. Procedural Background and Pending Motions
In their Complaint, Plaintiffs alleged that Defendants were applying three policies within their facilities that gave rise to, inter alia, violations of statutory wage and overtime requirements. Only two are relevant to the pending motions. First is a "Break Deduction Policy, " pursuant to which a meal break is deducted automatically from the pay of hourly workers. According to Plaintiffs, this policy is applied even when employees are required to perform patient care duties during all or some portion of the meal period. Next is an "Unpaid Preliminary and Postliminary Work Policy" under which Defendants do not pay employees for work performed before and/or after their scheduled shifts.
Within one week after filing their Complaint, Plaintiffs moved for conditional certification of a FLSA collective action, under 29 U.S.C. § 216(b). On July 1, 2008, Defendants responded by moving to dismiss the Complaint in its entirety. Thereafter, Plaintiffs voluntarily dismissed all but their FLSA and NYLL claims. These statutory claims survived Defendants' motion to dismiss, and Plaintiffs were directed to file an Amended Complaint that included only the claims that remain. (Docket No. 149, as amended by Docket No. 232.)
On October 14, 2009, this Court issued a decision on Plaintiffs' motion for conditional FLSA certification and concluded that the class description Plaintiffs had proposed was overly vague and not supported by the allegations and affirmations on record. The Court did, however, find there was a sufficient basis to conditionally certify a class that included a limited number of job titles and work locations-more specifically, "all present and former hourly registered nurses, staff nurses, licensed practical nurses, and respiratory therapists who perform(ed) patient care duties" at nine hospitals and skilled nursing/long-term care facilities. (Docket No. 228.)
Plaintiffs filed their Amended Complaint on December 15, 2009 (Docket No. 235, "Am. Compl."), naming as Defendants Kaleida Health, eighteen of its network entities, and two of its officers (id. Caption, ¶¶ 23, 48), which will together be referred to as "Kaleida." Discovery had commenced prior to filing of the Amended Complaint and continued for nearly three more years.
On October 29, 2012, Plaintiffs moved, under Rule 23 of the Federal Rules of Civil Procedure, for certification of two classes of claims under the New York Labor Law. The first involves the Break Deduction Policy, which Plaintiffs now appear to concede is not an unlawful practice in and of itself. Rather, they urge that Kaleida relies on hourly employees "to provide urgent and around-the-clock services" at its locations, but has a policy of paying for time worked during meal breaks only when an employee affirmatively reports having missed or been interrupted during a meal period. According to Plaintiffs, Kaleida knows employees do not always report missed or interrupted meal breaks, but it does not take steps to ensure they are compensated for the unreported time. (Docket No. 409 at 1.)
The second class involves what Plaintiffs refer to as a "Rounding Policy, " described as a timekeeping policy/system whereby the times clocked by hourly employees to record the start and end of their shifts are rounded forward and backward to the top of the hour, resulting in a loss of credit for time worked. (Id. at 1-2.) Each class is described as including all Kaleida hourly workers.
On December 7, 2012, Kaleida moved to strike Plaintiffs motion for a rounding class on the ground that Plaintiffs had not previously asserted such a claim (Docket No. 427.) Kaleida quickly followed, on December 17, 2012, with a motion for summary judgment on certain of the New York Minimum Wage Order and Labor Law claims of Plaintiffs Gordon, Mika, and Thomson. (Docket No. 431.) Essentially, Kaleida contends these named Plaintiffs are exempt, or largely exempt, from state law wage and overtime provisions. (Docket No. 431-2.) On January 23, 2013, Defendants sought to stay discovery pending resolution of the certification-related motions. (Docket No. 447-1.) Plaintiffs did not oppose the request (Docket No. 447), and the stay was granted (Docket No. 450.)
On July 8, 2013, Plaintiffs moved for partial summary judgment on the question of Kaleida's liability relative to their meal break claims under both the FLSA and NYLL. (Docket No. 474.)
These four related motions were fully briefed as of November 1, 2013. In light of the extensive materials submitted, the Court determined there was no need for oral argument.
B. Factual Background
1. The Named and Putative Parties
Kaleida Health, a charitable organization, was formed in 1998 as an affiliation of existing healthcare entities including, at various times: five hospitals,  fourteen primary and specialty care centers, an ambulatory surgery center, a home care agency operating in five counties, three long-term care facilities, nine school-based health centers, and various rehabilitation, laboratory, and adult day services. (Docket No. 426-3 ¶¶ 4-7.)
Kaleida employs approximately 8, 550 nonexempt workers at over 27 locations. These employees work in over 448 departments across the system, and hold 388 separate job titles. (Id. ¶ 24.) After the Court conditionally certified a FLSA class comprised of only certain job titles and facilities, Kaleida produced a notice list identifying 5, 380 potential class members. (Docket No. 410 ¶ 34.) Plaintiffs proposed class of all nonexempt Kaleida employees from 2002 would consist of approximately 18, 700 individuals.
Network-wide, approximately 84 percent of Kaleida employees are represented by nine different unions, and their terms and conditions of employment are governed by twelve different collective bargaining agreements ("CBAs"). (Docket No. 426-3 ¶¶ 25-26.) 40.) The various entities pay overtime at different daily or weekly thresholds and, for unionized positions, that threshold is governed by the applicable union contract. (Id. ¶ 28.)
The six name Plaintiffs, three registered nurses and three respiratory therapists, are or were employed at one of four Kaleida hospitals and/or two long-term care facilities. Current and former employees falling within the conditionally certified FLSA class description were notified of this action and some have opted-in to this case (the "opt-in plaintiffs"). The putative plaintiffs, for purposes of Rule 23 certification, include a broader group of all current and former hourly Kaleida employees at all Kaleida facilities who were employed during the relevant time period.
2. Kaleida Policies
Since April 2003, Kaleida has had a system-wide Timekeeping Standards Policy which requires that employees accurately report all time worked using the reporting mechanism(s) in place at their respective work sites. (Id. ¶¶ 33, 38, Exh. B.) In the event that a portion of a Kaleida policy conflicts with any collective bargaining ...