{"id":777,"date":"2023-08-29T09:30:39","date_gmt":"2023-08-29T13:30:39","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=777"},"modified":"2023-08-29T09:30:39","modified_gmt":"2023-08-29T13:30:39","slug":"ohio-federal-court-grants-conditional-certification-in-wage-hour-collective-action-under-the-sixth-circuits-new-strong-likelihood-standard","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2023\/08\/29\/ohio-federal-court-grants-conditional-certification-in-wage-hour-collective-action-under-the-sixth-circuits-new-strong-likelihood-standard\/","title":{"rendered":"Ohio Federal Court Grants Conditional Certification In Wage & Hour Collective Action Under The Sixth Circuit\u2019s New \u201cStrong Likelihood\u201d Standard"},"content":{"rendered":"

\"\"<\/a>By Gerald L. Maatman, Jr., Jennifer A. Riley, and Kathryn Brown<\/strong><\/p>\n

Duane Morris Takeaways<\/em><\/strong>:<\/strong> In Gifford v. Northwood Healthcare Group LLC et al., No. 22-CV-04389 (S.D. Ohio Aug. 21, 2023), Judge Sarah D. Morrison of the U.S. District Court for the Southern District of Ohio granted<\/a> plaintiff\u2019s motion for conditional certification of a wage & hour collective action pursuant to 29 U.S.C. \u00a7 216(b) of the Fair Labor Standards Act (\u201cFLSA\u201d).\u00a0 Through sworn declarations and documentary evidence of defendants\u2019 meal break policy, the Court found plaintiff showed a \u201cstrong likelihood\u201d that she was similarly-situated to potential collective action members who may elect to join the lawsuit.\u00a0 The ruling adds to the body of case law applying the Sixth Circuit\u2019s new standard for notice to potential opt-in plaintiffs in putative FLSA collective actions announced in Clark v. A&L Homecare and Training Center, LLC, 68 F.4th 1003 (6th Cir. 2023), and ought to be required reading for any employers involved in wage & hour litigation.<\/em><\/p>\n

Case Background<\/strong><\/p>\n

On December 15, 2022, plaintiff filed a Complaint against Northwood Healthcare Group, LLC and Garden Healthcare Group, LLC, two entities operating healthcare facilities in Ohio.\u00a0 Plaintiff allegedly worked at two such facilities as a non-exempt Licensed Practical Nurse.\u00a0 The lawsuit targeted the defendants\u2019 meal break practices.\u00a0 Plaintiff contended that due to staffing shortages and the demands of patient care, she did not receive a full, uninterrupted 30-minute (\u201cbona fide<\/em>\u201d) meal break on a regular basis.\u00a0 As alleged in the Complaint, defendants automatically deducted 30 minutes of time from her hours worked even when she did not receive a bona fide<\/em> meal break, resulting in unpaid overtime compensation.\u00a0 On behalf of herself and similarly situated other employees, Plaintiff brought claims asserting failure to pay overtime wages under the FLSA, failure to pay overtime wages under the Ohio Minimum Fair Wage Standards Act (\u201cOMFWSA\u201d), failure to keep accurate payroll records under the OMFWSA and failure to pay wages timely under the Ohio Prompt Pay Act.<\/p>\n

On March 15, 2023, plaintiff filed a motion for conditional certification of a collective action.\u00a0 On May 15, 2023, defendants opposed the motion on the merits and urged the Court to delay ruling until the Sixth Circuit issued its opinion in Clark<\/em>.<\/p>\n

On May 19, 2023, the Sixth Circuit in Clark <\/em>announced a more rigorous standard for authorizing notice of an FLSA lawsuit to other employees.\u00a0 Abandoning the prior standard of a \u201cmodest factual showing\u201d of similarly situated status, the standard in Clark <\/em>requires plaintiffs to establish a \u201cstrong likelihood\u201d that they are similarly situated to potential other plaintiffs.<\/p>\n

Days later, in her reply brief filed on May 23, 2023, plaintiff argued that the evidence she presented in her motion satisfied the new standard in Clark<\/em>.<\/p>\n

The Court\u2019s Decision<\/strong><\/p>\n

The Court determined that the evidence provided in support of plaintiff\u2019s motion satisfied the \u201csubstantial likelihood\u201d standard announced in Clark<\/em>.<\/p>\n

Specifically, plaintiff provided her own sworn declaration and the sworn declarations of six individuals who had filed consents to join the lawsuit as opt-in plaintiffs.\u00a0 Together, plaintiff and the other declarants worked at six of the 14 facilities plaintiff sought to include in her lawsuit.\u00a0 The Court found the declarations told a consistent story of employees not receiving overtime pay for those occasions when patient care needs required employees to skip or cut short their designated 30 minutes for a meal break, even after employees complained to management about being undercompensated.<\/p>\n

Plaintiff also submitted evidence of employee handbooks in effect at the six facilities at which the declarants had worked for the defendants.\u00a0 The Court found that the handbooks reflected nearly identical policies on overtime compensation and meal breaks.\u00a0 For example, the meal break policy in the various employee handbooks stated that employees who worked through their meal breaks would receive pay for their time, whether the work was authorized or not. Defendants argued that plaintiff\u2019s evidence fell short of identifying a \u201ccompanywide\u201d policy.\u00a0 Defendants pointed out that the declarants had no personal knowledge of the meal break practices in effect at facilities operated by defendants at which they had not worked.\u00a0 The Court disagreed. It opined that plaintiff presented enough evidence of a unified theory of conduct by defendants, notwithstanding that the declarants did not represent former employees at all of the facilities the plaintiff sought to include in the lawsuit.<\/p>\n

The Court concluded that the evidence \u201cestablishes to a certain degree of probability\u201d that the plaintiff, the individuals who had already filed consents to become opt-in plaintiffs, and the other potential plaintiffs performed the same tasks, were subject to the same policies and were unified by a common theory underlying their causes of action. Id.<\/em> at 8.<\/p>\n

In so ruling, the Court authorized plaintiff to send notice to all current and former hourly, non-exempt direct care employees of defendants who had a meal break deduction applied to their hours worked in any workweek in which they were paid for at least 40 hours of work during a three-year lookback period and through the final disposition of the case.<\/p>\n

Implications For Employers<\/strong><\/p>\n

The Court\u2019s ruling in Gifford<\/em> demonstrates that application of the Sixth Circuit\u2019s \u201cstrong likelihood\u201d standard is highly dependent on the evidence presented by a plaintiff.\u00a0 By contrast, under the prior standard, courts routinely granted plaintiffs\u2019 motions to authorize notice to potential opt-in plaintiffs.<\/p>\n

Employers with operations in Ohio, Tennessee, Michigan and\/or Kentucky should keep a close watch on Gifford<\/em> and other cases applying the Sixth Circuit\u2019s new standard in FLSA litigation.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Kathryn Brown Duane Morris Takeaways: In Gifford v. Northwood Healthcare Group LLC et al., No. 22-CV-04389 (S.D. Ohio Aug. 21, 2023), Judge Sarah D. Morrison of the U.S. District Court for the Southern District of Ohio granted plaintiff\u2019s motion for conditional certification of a wage & … <\/p>\n

Continue reading “Ohio Federal Court Grants Conditional Certification In Wage & Hour Collective Action Under The Sixth Circuit\u2019s New \u201cStrong Likelihood\u201d Standard”<\/span><\/a><\/p>\n","protected":false},"author":575,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[37],"tags":[],"ppma_author":[7,9,87],"class_list":["post-777","post","type-post","status-publish","format-standard","hentry","category-class-certification-motions"],"authors":[{"term_id":7,"user_id":575,"is_guest":0,"slug":"gmaatman","display_name":"Gerald L. Maatman, Jr.","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/maatmangerald-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""},{"term_id":9,"user_id":576,"is_guest":0,"slug":"jariley","display_name":"Jennifer A. Riley","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2023\/08\/rileyjennifer-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""},{"term_id":87,"user_id":645,"is_guest":0,"slug":"krbrown","display_name":"Kathryn R. Brown","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2023\/05\/brownkathryn-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/777","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/users\/575"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=777"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/777\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=777"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=777"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=777"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=777"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}