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Alves v. Affiliated Care of Putnam, Inc.

United States District Court, S.D. New York

February 7, 2017

MARIA ALVES, individually, and on behalf of all others similarly situated, Plaintiff,
AFFILIATED HOME CARE OF PUTNAM, INC., and BARBARA KESSMAN, in her individual capacity, Defendants.

          Daniel C. Stafford, Esq. McCabe & Mack LLP Poughkeepsie, NY Counsel for Plaintiff

          Nathaniel K. Charny, Esq. Charny & Associates Rhinebeck, NY Counsel for Plaintiff

          Steven Felsenfeld, Esq. Law Offices of Robert Hilpert Croton-on-Hudson, NY Counsel for Defendants

          OPINION & ORDER

          KENNETH M. KARAS, District Judge

         Maria Alves (“Plaintiff”) brings this collective Action on behalf of herself and others similarly situated against Affiliated Home Care of Putnam, Inc. (“Affiliated”) and Barbara Kessman (collectively, “Defendants”), seeking to recover overtime compensation pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and Article 6 of the New York State Labor Law (“NYLL”). (See Am. Compl. ¶ 1 (Dkt. No. 10).) Plaintiff moves for: (1) conditional certification of a collective action pursuant to 29 U.S.C. § 216(b); (2) authorization to send Court-approved notice of this Action to potential opt-in plaintiffs; and (3) an order compelling Defendants to produce the names and addresses of such individuals. (See Mem. of Law in Supp. of Pls.' Mot. To Proceed as a Collective Action, for Court-Authorized Not. and for Disclosure of the Names and Addresses of Potential Opt-In Pls.) (“Pl.'s Mem.”) 1 (Dkt. No. 16).)[1] For the reasons set forth below, Plaintiff's Motion is granted.

         I. Background

         A. Factual Background

         Plaintiff was employed by Defendants as a home health care aide from December 23, 2006 through December 4, 2015. (Am. Compl. ¶ 4.) Plaintiff's responsibilities included “bathing and grooming patients, ” services Plaintiff asserts are “typically provided by home health aides.” (Id. ¶ 20.) Plaintiff avers that at the direction of Defendants, she also performed tasks “outside the scope of her employment, ” (id. ¶ 21), such as “removing garbage, dusting, cleaning refrigerators, cleaning ovens, cleaning common areas and areas of homes not ordinarily used by patients, shoveling snow, ironing the patients' clothes and sheets, ironing clothes belonging to other members of the household, washing windows and curtains, transporting firewood into homes, and caring for plants and gardens, ” (id. ¶ 20). Plaintiff asserts that the amount of time she and others employed by Defendants spent on such work “regularly exceed[ed] [20] percent of the employees' working time.” (Id.)[2] Plaintiff alleges that she regularly worked in excess of 40 hours per week, (id. ¶ 23), and for all services-both typical and outside the scope of her employment-she was paid between $12.00 and $16.00 per hour, (id. ¶ 22). Plaintiff alleges that “[d]espite regularly working in excess of 40 hours per week, ” Defendants never provided her overtime pay. (Id. ¶ 24.)

         Plaintiff further asserts that Defendants failed to display the required federal and state notices regarding wage and hour requirements. (Id. ¶¶ 28, 29.) Plaintiff alleges that “Defendants engaged in the practice of issuing two checks for a single seven-day pay period-one for the first 40 hours and another for any hours in excess, ” (id. ¶ 25), and that Defendants used the same practice for Plaintiff and other similarly-situated employees, (id. ¶ 26). Plaintiff contends that such techniques allow Defendants to “manipulate[] payroll records” and “mask [Affiliated's] wrongdoing.” (Id.)

         Plaintiff avers that she “became aware through observations and conversations that other employees of Defendants performed the same or similar tasks” as Plaintiff and that Plaintiff “observed these employees frequently working over 40 hours per week and not being paid overtime wages.” (Decl. of Maria Alves (“Alves Decl.”) ¶ 6 (Dkt. No. 15-1).) Plaintiff asserts that upon her knowledge, “Defendants presently employ approximately 30 other individuals with the same responsibilities that [Plaintiff] once had.” (Id.)

         B. Procedural History

         Plaintiff filed her original Complaint on March 2, 2016, (Dkt. No. 1), and Defendants filed an Answer on May 2, 2016, (Dkt. No. 9). Plaintiff filed an Amended Complaint on May 12, 2016, (Dkt. No. 10), and Defendants filed an Answer to the Amended Complaint and, additionally, a Counterclaim against Plaintiff on May 26, 2016, (Dkt. No. 11). Plaintiff filed an Answer to Defendants' Counterclaim on June 20, 2016. (Dkt. No. 12.) On August 17, 2016, Plaintiff filed the instant Motion and accompanying memorandum of law. (Dkt. Nos. 15-16.) On September 15, 2016, Defendants filed their opposition to Plaintiff's Motion, (Dkt. No. 22), and on September 29, 2016, Plaintiff filed her reply, (Dkt. No. 23).[3]

         II. Discussion

         A. ...

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