United States District Court, D. Kansas
MONICA ROSEBOROUGH, Individually And On Behalf Of All Similarly Situated Individuals, Plaintiff,
ALL SAINTS HOME CARE, INC., ALL SAINTS HEALTH CARE, LLC and ALL SAINTS HEALTH HOLDINGS, LLC, Defendants.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
Roseborough, on behalf of herself and others similarly
situated, brings suit against All Saints Home Care, Inc., All
Saints Health Care, LLC and All Saints Health Holdings, LLC,
seeking unpaid wages and overtime compensation under the Fair
Labor Standards Act (“FLSA”), 29 § U.S.C.
201 et seq. This matter comes before the Court on
the Parties' Stipulation And Motion For Conditional
Certification And Judicial Notice To Putative Collective
Members (Doc. #36) filed November 21, 2018. For reasons
stated below, the Court sustains the motion and approves the
proposed notice with the following modifications discussed
29 U.S.C. § 216(b), the parties seek conditional
certification of a collective action for purposes of
providing notice to putative class members. Section 216(b)
provides in part that “[a]n action . . . may be
maintained against an employer . . . by any one or more
employees for and in behalf of himself or themselves and
other employees similarly situated.” 29 U.S.C. §
216(b). This provision provides the exclusive procedural
mechanism for class certification in actions under the FLSA.
Brown v. Money Tree Mortgage, Inc., 222 F.R.D. 676,
679 (D. Kan. 2004). Though the FLSA does not define the
phrase “similarly situated, ” the Tenth Circuit
has approved an ad hoc approach by which the Court
determines on a case-by-case basis whether the members of the
putative class are similarly situated. See
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,
1105 (10th Cir. 2001). Under this approach, the Court engages
in a two-step process. First, it makes an initial
“notice stage” determination which requires
nothing more than substantial allegations that the putative
class members were together the victims of a single decision,
policy or plan. Id. at 1102 (quoting Vaszlavik
v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo.
1997)). By this determination, the Court decides whether to
certify a collective action for purposes of sending notice of
the action to potential class members. Brown, 222
F.R.D. at 679. This initial step creates a lenient standard
which typically results in conditional certification of a
representative class. Gieseke v. First Horizon Home Loan
Corp., 408 F.Supp.2d 1164, 1166 (D. Kan. 2006) (citing
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th
Cir. 1995)). Under the second step, initiated at the close of
discovery, the Court utilizes a stricter standard which
requires evaluation of several factors, including (1)
disparate factual and employment settings of individual
plaintiffs; (2) any defenses available to defendants which
appear to be individual to each plaintiff; and (3) fairness
and procedural considerations. Thiessen, 267 F.3d at
reviewing the allegations of the complaint and the
parties' brief in support of the motion, the Court is
satisfied that plaintiff has met the minimal threshold
required for conditional collective certification for
purposes of sending notice to potential class members.
See Renfro v. Spartan Computer Servs.,
Inc., 243 F.R.D. 431, 433-34 (D. Kan. 2007) (citing
Brown, 222 F.R.D. at 681) (generally, where putative
class members employed in similar positions, allegation that
defendants engaged in pattern or practice of not paying
overtime sufficient to allege plaintiffs were victims of
single decision, policy or plan).
parties seek conditional certification of a collective class
under the FLSA which includes:
All current and former workers who provided in-home care
services to one or more self-directed participants in a
Medicaid Home and Community Based Services (HCBS) program and
who used All Saints Home Care, Inc. as a Financial Management
Services (FMS) provider (“Self-Directed Client”)
and who both: (1) worked either (a) more than 40 hours during
any work week for one Self-Directed Client or (b) more than
38 hours for a combination of one Self-Directed Client and
any other client(s), and (2) was not paid overtime at the
rate of one and one-half times the regular rate of pay for
all hours worked over 40 at any time between March 12, 2015
and the date of judgment (“FLSA Collective”).
Stipulation And Motion (Doc. #36) at 3.
proposed class includes all in-home care workers who used All
Saints Home Care, Inc. as a Financial Management Services
provider “at any time between March 12, 2015 and the
date of judgment.” Id. The temporal scope of
this proposed class is overly broad. Under the FLSA, the
statute of limitations for willful violations is three years
after the cause of action accrued. 29 U.S.C. § 255(a).
Notice of the collective action is intended to reach those
putative class members who have not yet joined the action,
and under 29 U.S.C. § 256, an opt-in plaintiff is deemed
to have commenced his or her claim when he or she files
notice of consent to join the collective action. Thus, for
individuals who have not yet joined the action, the maximum
reach of the limitations period for any willful violation of
the FLSA - assuming those individuals opt in immediately -
would extend back only three years from the date of this
order, rather than three years from plaintiff's filing of
the complaint. See Lewis v. ASAP Land Exp., Inc.,
No. 07-2226-KHV, 2008 WL 2152049, at *2 (D. Kan. May 21,
2008); see also Pivonka v. Bd. of Cty. Comm'rs
of Johnson Cty., Kan., No. 04-2598-JWL, 2005 WL
1799208, at *1 n.1 (D. Kan. July 27, 2005) (conditionally
certifying representative FLSA action to include similarly
situated persons employed within three years of order). Aside
from Roseborough, a person who has not worked for defendants
within the last three years cannot now opt in because that
person's claim for unpaid wages is time-barred. The Court
orders the parties to conform the employment dates of the
proposed class definition to the applicable statute of
limitations as set out above (i.e., between three
years prior to the date of this order and the present).
Proposed Notice And Consent To Potential Plaintiffs
noted, conditional certification serves to facilitate the
dissemination of notice to potential class members. To this
end, the parties' motion attaches a proposed notice form.
Although the parties have agreed to the proposed notice and
consent to join form, under the FLSA the Court has the power
and duty to ensure that the notice is fair and accurate.
Creten-Miller v. Westlake Hardware, Inc., No.
08-2351-KHV, 2009 WL 2058734, at *2 (D. Kan. July 15, 2009)
(citation omitted). The Court should not, however, alter the
proposed notice unless such alteration is necessary.
reviewing the parties' proposed notice and consent to
join form, the Court identifies the following changes the
parties must make to the notice:
1. Court authorization of the notice should not be in bold
text. See Clayton v. Velociti, Inc., No. 08-2298-CM,
2009 WL 304190, at *3 (D. Kan. Feb. 9, 2009).
2. Inform recipients that if they do not prevail there is a
possibility that they may be responsible for court costs.