United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN UNITED STATES DISTRICT JUDGE
Yvonne Downie, a former home health aide, brings this action
against Defendants Carelink, Inc., Ena Bailey, and several
Doe Defendants for violations of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 206(a) and
207(a), and the New York Labor Law, (“NYLL”), and
for breach of contract and unjust enrichment. Two employment
policies lie at the crux of Downie's suit: (1)
Defendants' alleged failure to pay their employees
overtime at time and one-half their regular rates, as
required by the U.S. Department of Labor's regulations
governing home health aides; and (2) Defendants' policy
of deducting eight hours for sleep and three hours for meal
breaks from their employees' 24-hour shifts, amounting to
a net compensation of thirteen hours of pay per 24-hour
shift. Plaintiff also alleges that Defendants violated New
York's spread-of-hours law, Wage Theft Prevention Act,
and Wage Parity Act. Plaintiff moves for conditional
certification of a collective action under FLSA § 216(b)
for her overtime claims, and for certification of several New
York-law classes under Federal Rule of Civil Procedure 23.
For the reasons that follow, the Court grants Plaintiff's
motion for conditional certification and certifies a Rule 23
class of New York employees who were not paid proper overtime
compensation. The Court denies certification as to all other
Carelink, Inc. is an employment agency that provides in-home
care services to sick and elderly patients. (Dkt. No. 42-4
¶ 3.) Defendant Ena Bailey is Carelink's President
and principal owner. (Id. ¶ 1.)
Downie worked for Carelink as a home health aide and maid
from October 2012 to October 2015. (Dkt. No. 31
(“Downie Decl.”) ¶ 1.) Carelink sent
Downie to work for clients in New York City and Nassau
County. (Id. ¶ 2.)
often worked 24-hour shifts, during which she would stay
overnight at a client's house. During these shifts,
Downie's sleep was often interrupted several times per
night by her clients; sometimes, she was not offered a bed to
sleep on and had to spend the night on a couch. (Id.
¶ 4.) She often ate while working because she was not
accorded a meal break. (Id. ¶ 9.) Her
responsibilities included cleaning the clients' homes,
taking out the garbage, making their beds, doing their
laundry, and cooking them three meals per day. (Id.
¶¶ 13-14, 19-20.) At least 30% of her time was
spent performing household work. (Id. ¶ 25.)
Downie frequently worked more than 40 hours per week, and
when she did, she was allegedly not paid at the proper
overtime rate. (Id. ¶ 10.) She also alleges
that she was occasionally required to work for two different
clients in the same day, and was not paid for the time and
expenses she incurred travelling between the two.
(Id. ¶ 5.)
avers that “Defendants hired at least 40 . . . home
health aides/maids” who were similarly not paid their
proper overtime, not paid for travel time and expenses
between clients, not paid minimum wages and regular wage, and
not properly compensated for their 24-hour shifts.
(Id. ¶ 26.) Specifically, she named four other
aides who told her that they did not receive pay for travel
time, overtime pay, vacation pay or sick pay, or full
compensation for their 24hour shifts.
Downie alleges that Defendants failed to provide her with
Wage Theft Prevention Act notices, with the exception of
“one notice [she] received shortly after [she] started
working.” (Id. ¶ 33.) She alleges, on
information and belief, that other employees were also not
given the same notice. (Id.) Plaintiff filed this
suit in July 2016, alleging that Defendants violated the
FLSA, various NYLL provisions, New York's Wage Parity
Act, and New York's Wage Theft Prevention Act. (Dkt. No.
1.) She now seeks to certify a FLSA collective action and
four New York state law classes under Rule 23 of the Federal
Rules of Civil Procedure. (Dkt. No. 33 at 3-5.)
motion to certify a FLSA collective action is governed by
FLSA § 216(b), while Plaintiff's motion to certify
various class actions is governed by Federal Rule 23.
216(b) of FLSA authorizes employees to sue on behalf of
“themselves and other employees similarly
situated” for violations of FLSA's overtime
provisions. 29 U.S.C. § 216(b); see also Colon v.
Major Perry St. Corp., No. 12 Civ. 3788, 2013 WL
3328223, at *3 (S.D.N.Y. July 2, 2013). To participate in a
FLSA collective, similarly situated employees must opt in by
filing their “consent in writing to become . . . a
party.” 29 U.S.C. § 216(b); see also Colon, 2013
WL 3328223, at *3.
Second Circuit has established a two-step process for
certifying a collective action under FLSA. “The first
step involves the court making 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.”
Colon, 2013 WL 3328223, at *4 (quoting Myers v. Hertz
Corp., 624 F.3d 537, 555 (2d Cir. 2010)). “At the
second stage, the district court will, on a fuller record,
determine whether a so-called ‘collective action'
may go forward by determining whether the plaintiffs who have
opted-in are in fact ‘similarly situated' to the
named plaintiffs.” Id. at *5 (quoting Myers,
624 F.3d at 555)). If not, the action may be decertified.
first step of the analysis-called “conditional
certification”-“requires only a ‘modest
factual showing' from plaintiffs that ‘they and
potential opt-in plaintiffs together were victims of a common
policy or plan that violated the law.'”
Id. at *4 (quoting Myers, 624 F.3d at 555). In other
words, plaintiffs must identify a “factual nexus which
binds the named plaintiffs and potential class members
together as victims of a particular practice.”
Shillingford v. Astra Home Care, Inc., 293 F.Supp.3d
401, 407 (S.D.N.Y. 2018) (quoting Alvarez v. Schnipper
Rests. LLC, No. 16 Civ. 5779, 2017 WL 6375793, at *2
(S.D.N.Y. Dec. 12, 2017)). “Accordingly, a FLSA
collective action may be conditionally certified upon even a
single plaintiff's affidavit.” Id.
(quoting Escobar v. Motorino E. Vill. Inc.,
No. 14 Civ. 6760, 2015 WL 4726871, at *2 (S.D.N.Y. Aug. 10,
the conditional certification stage, ‘the court does
not resolve factual disputes, decide substantive issues going
to the ultimate merits, or make credibility
determinations.'” Hypolite v. Health Care
Servs. of N.Y. Inc., 256 F.Supp.3d 485, 489 (S.D.N.Y.
2017) (quoting Cunningham v. Elec. Data Sys. Corp.,
754 F.Supp.2d 638, 644 (S.D.N.Y. 2010)). “If the
employees are similarly situated . . ., ‘any factual
variances that may exist between the plaintiff and the
putative class [will] not defeat conditional . . .
certification.'” Jackson v. Bloomberg,
L.P., 298 F.R.D. 152, 158 (S.D.N.Y. 2014) (second
alteration in original) (quoting Lynch v. United Servs.
Auto. Ass'n, 491 F.Supp.2d 357, 369 (S.D.N.Y.
initial conditional certification determination is merely a
preliminary finding.” Lynch, 491 F.Supp.2d at 368. At
the second stage, after plaintiffs have opted in and
discovery has occurred, “the court undertakes a more
stringent factual determination as to whether members of the
class are, in fact, similarly situated.” Id.
23 Class Certification
certification is governed by Federal Rule of Civil Procedure
23. Section (a) of Rule 23 requires the party seeking
certification to establish four prerequisites:
(1) the class is so numerous that joinder of all members is
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class.
Civ. P. 23(a).
addition, “the movant must show that the action is one
of three types described in Section (b).” Jackson, 298
F.R.D. at 159. Here, Plaintiff seeks certification under
subsection (b)(3), which requires that a court to find
“that the questions of law or fact common to class
members predominate over any questions affecting only
individual members, and that a class action is superior to
other available methods for fairly and efficiently
adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).
To decide whether the predominance and superiority
requirements are satisfied, courts consider:
(A) the class members' interests in individually
controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and (D) the
likely difficulties in managing a class action.
Civ. P. 23(b)(3)(A)-(D).
Rule 23 requirements are more than a “mere pleading
standard.” Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 350 (2011). “Rather, the party seeking class
certification must actually establish [Rule 23's]
requirements by a preponderance of the evidence.”
Jackson, 298 F.R.D. at 159. “While the plaintiff's
pleadings are assumed to be true, the court must nevertheless
conduct a rigorous analysis to determine whether a class
action is appropriate, considering materials outside of the
pleadings and weighing conflicting evidence as
seeks to certify a FLSA collective of health aides employed
by Carelink who were not paid adequate overtime compensation
between January 1, 2015, and October 14, 2015. (Dkt. No. 34
at 1.) Plaintiff also seeks to certify five Rule 23 classes
of health aides under New York state law: (1) employees who
were not paid proper overtime compensation under the NYLL;
(2) employees who were paid for only 13 hours out of their
24-hour shifts; (3) employees who were not paid a
“spread-of-hours” premium; (4) employees who did
not receive accurate notices as required ...