United States District Court, M.D. North Carolina
DOROTHY CLARK, Individually and on behalf of all others similarly situated, Plaintiff,
LASHONDA S. WILLIAMSON d/b/a Impact Home Care Services, Defendant.
MEMORANDUM OPINION AND ORDER
D. SCHROEDER, District Judge.
a proposed collective action under the Fair Labor Standards
Act, 29 U.S.C. § 201 et seq.
(“FLSA”). Before the court is Plaintiff Dorothy
Clark's motion for conditional certification of an FLSA
collective and approval of notice. (Doc. 16.) This motion has
been briefed and is ripe for consideration. (Docs. 17, 31,
32.) For the reasons set forth below, the motion to
conditionally certify the collective action will be granted,
and the motion for approval of notice will be granted in part
and denied in part.
December 16, 2016, Clark brought this action on behalf of
herself and others similarly situated, alleging that
Defendant LaShonda S. Williamson d/b/a Impact Home Care
Services (“Williamson”) misclassified home
healthcare workers as independent contractors and seeking to
recover unpaid overtime under the FLSA. (Doc. 1; Doc.
On March 7, 2017, Clark subsequently moved to conditionally
certify this matter as a collective action under the FLSA and
approve notice to potential class members. (Doc. 16.) Clark
defines the class, or collective under the FLSA, to be
All current and former home healthcare workers (personal care
aides, certified nursing assistants and in-home aides) who
worked for LaShonda Swindell Williamson d/b/a Impact Home
Care Services at any time since January 1, 2015 and who were
classified as an independent contractor and who were not paid
time and a half for all hours worked over 40 in a work week.
(Doc. 16-1 at 2.)
operates an unincorporated business named Impact Home Care
Services, which is a North Carolina-based home care agency
that provides personal care services and assistance with home
management tasks to elderly, ill, and disabled clients. (Doc.
26 ¶ 9; Doc. 16-2 at 2-3.) Williamson offers personal
care assistance 24 hours a day, 7 days a week, with services
provided by home healthcare workers under the direct
supervision of a registered nurse. (Doc. 16-2 at 2; Doc. 16-3
at 2.) In order to meet the needs of her clients, Williamson
provides at least some of these home healthcare services to
her clients through a “network of independent
contractors.” (Doc. 26 ¶ 75; see id. Ex.
1.) On April 7, 2015, Clark entered into an agreement to work
as an independent contractor to provide in-home companionship
and care for Williamson's clients. (Doc. 27 ¶ 7;
Doc. 26, Ex. 1; Doc. 16-4 ¶¶ 4-6.)
claims that Williamson “attempted to circumvent the
FLSA by misclassifying [her] home healthcare workers as
independent contractors.” (Doc. 16-1 at 9.) In her
declaration submitted in conjunction with this motion, Clark
alleges that “all home healthcare workers were subject
to this company-wide policy of classifying home healthcare
workers as independent contractors and not paying them
overtime wages.” (Doc. 16-4 ¶ 25.) Based on her
discussions with other home healthcare workers, Clark claims
that all home healthcare workers shared the same or similar
job description, performed the same or similar duties, and
were classified as independent contractors. (Id.
¶¶ 7-9, 25.) She further alleges that all such
workers were required to fulfil the responsibilities outlined
in plans of care prepared by the Defendant and lacked any
independent discretion as to how their duties were performed.
(Doc. 16-4 ¶¶ 10-14.) She claims that registered
nurses monitored the completion of such care plans and that
all supervisors were directly employed by the Defendant.
(Doc. 16-1 at 5-6; see Doc. 16-3 at 2.) She asserts
that all home healthcare employees were required to wear
company badges and instructed to adhere to a dress code by
their supervisors. (Doc. 16-4 ¶¶ 19-20; Doc. 16-11
alleges that she worked for Williamson as a home healthcare
worker or certified nursing assistant from early 2015 until
approximately October 2016. (Doc. 16-4 ¶¶ 2-3; Doc.
16-10 at 2.) She claims that she regularly worked over forty
hours per week but was never paid overtime wages in excess of
her $11.00 hourly rate. (Doc. 16-4 ¶¶ 18, 21-22;
see Doc. 13 ¶¶ 37-38.) She has provided
time sheets and pay stubs that indicate she worked in excess
of ninety hours per week on some occasions without being paid
overtime wages. (Doc. 16-5 (pay stubs indicating weekly
compensation for work totaling 92.75 hours, 92.0 hours, 89.75
hours, and 89.25 hours at a rate equal to $11.00 per hour);
Doc. 16-6 at 2; Doc. 16-7 at 2 (time sheet indicating a
weekly total 91.5 hours).) Based on her discussions with
other home healthcare workers, knowledge of their work
schedules, and conversations with her supervisors, Clark
contends that other home healthcare workers worked over forty
hours per week since January 1, 2015, and were not paid
overtime wages. (Doc. 16-4 ¶¶ 23-24; see
Doc. 13 ¶ 37.)
Motion for Conditional Certification
FLSA requires covered employers to pay their employees
overtime pay at one and one-half times the employee's
normal hourly rate for hours worked in excess of forty during
a work week. 29 U.S.C. § 207. However, the act contains
various exemptions from its wage and hour requirements.
See id. § 213. The “companionship
services exemption” exempts “any employee
employed in domestic service employment to provide
companionship services for individuals who (because of age or
infirmity) are unable to care for themselves . . . .”
Id. § 213(a)(15).
October 2013, the U.S. Department of Labor amended its
regulations to preclude third-party employers and agencies
from claiming the companionship services exemption.
See Application of the Fair Labor Standards Act to
Domestic Service, 78 Fed. Reg. 60, 454 (Oct. 1, 2013). The
amended regulations, which became effective on January 1,
2015,  extended the overtime payment provisions
to home healthcare workers employed by third parties or
agencies. 29 C.F.R. § 552.109(a); see Guerrero v.
Moral Home Servs., Inc., 247 F.Supp.3d 1288, 1290 (S.D.
Fla. 2017) (noting “[t]he amended regulations preclude
third-party employers-like [defendant's home healthcare
agency]-from claiming the companionship services
violation of the FLSA, an employee may bring a collective
action on behalf of herself or “other employees
similarly situated.” 29 U.S.C. § 216(b). To become
part of the litigation, each “similarly situated”
employee must file her written consent with the court.
Id. Employees are “similarly situated”
when they “raise a similar legal issue as to coverage,
exemption, or nonpayment o[f] minimum wages or overtime
arising from at least a manageably similar factual setting
with respect to their job requirements and pay
provisions.” Solais v. Vesuvio's II Pizza &
Grill, Inc., 1:15CV227, 2016 WL 1057038, at *5 (M.D.
N.C. Mar. 14, 2016) (quoting McLaurin v. Prestage Foods,
Inc., 271 F.R.D. 465, 469 (E.D. N.C. 2010)) (alteration
class certification takes place in two stages. Hollis v.
Alston Pers. Care Servs., LLC, No. 1:16CV1447, 2017 WL
3327591, at *2 (M.D. N.C. Aug. 3, 2017) (citing
Solais, 2016 WL 1057038, at *5). The first stage -
applicable here - is conditional certification, during which
the court determines whether the employees' claims are
similar enough to merit the distribution of court-approved
notice to possible class members. Id.; see also
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169
(1989) (“[D]istrict courts have discretion, in
appropriate cases, to implement [§ 216(b)] by
facilitating notice to potential plaintiffs.”). At this
stage, “[c]ollective action plaintiffs are not bound by
Rule 23's requirements of numerosity, commonality,
typicality and adequacy; they need only demonstrate that they
are ‘similarly situated' to proceed as a
class.” Robinson v. Empire Equity Grp., Inc.,
No. WDQ-09-1603, 2009 WL 4018560, at *1 n.8 (D. Md. Nov. 18,
2009) (citing Mancia v. Mayflower Textile Servs.
Co., No. CCB-08-273, 2008 WL 4735344, at *2 (D. Md. Oct.
14, 2008)); Solais, 2016 WL 1057038, at *5 n.6.
certification is appropriate when it would serve judicial
efficiency, Hoffmann-La Roche, 493 U.S. at 170, and
the court must be mindful that granting conditional
certification expands the scope of the litigation and begins
a process of class-wide discovery, see, e.g.,
D'Anna v. M/A-COM, Inc., 903 F.Supp. 889, 894
(D. Md. 1995). The standard for conditional certification is
“fairly lenient, ” but it is not a
“rubber-stamp approach.” Adams v. Citicorp
Credit Servs., Inc., 93 F.Supp.3d 441, 453 (M.D. N.C.
2015) (citation omitted). While parties generally “have
minimal evidence at this point in the proceedings[, ] . . .
[m]ere allegations will not suffice; some factual evidence is
necessary.” Id. (citations omitted). The
plaintiff must only make “a relatively modest factual
showing that a common policy, scheme or plan that violated
the law exists.” Hollis v. Alston Pers. Care
Servs., LLC, No. 1:16CV1447, 2017 WL 3327591, at *3
(M.D. N.C. Aug. 3, 2017) (quoting Adams, 93
F.Supp.3d at 453). At this stage, “the Court does not
resolve factual disputes, decide substantive issues on the
merits, or make credibility determinations.”
Solais, 2016 WL 1057038, at *6 (quoting
Adams, 93 F.Supp.3d at 454).
first contends that Clark has failed to allege any violation
occurring as a result of a policy or custom. (Doc. 31 at
3-4.) In particular, Williamson notes that Clark provides no
information regarding the potential size of the class she
wishes to be certified. (Id.) Williamson
further contends that Clark relies primarily on hearsay
statements from other employees, which may not be considered
by the court in connection with a § 216(b) motion.
(Id. at 4 (citing Harrison v. McDonald's
Corp., 411 F.Supp.2d 862, 865 (S.D. Ohio 2005)).
contends that she has satisfied her “lenient
burden” by identifying a specific payroll practice that
allegedly violates the FLSA and applies to all home
healthcare workers employed by the Defendant. (Doc. 32 at
1-3.) She claims that her declaration and supporting
documentation establish that these home healthcare workers
are similarly situated for purposes of conditional
certification. (Id.) She further argues that courts
may consider the hearsay statements within her declaration at
this stage in the proceedings. (Id. at 3-7.)
to Williamson's claim, “courts in the Fourth
Circuit that have addressed the issue have held that hearsay
evidence . . . supporting a motion for conditional
certification may be considered so long as it is based on
personal knowledge.” Hollis, 2017 WL 3327591,
at *2 (quoting McCoy v. RP, Inc., C.A. No. 2:14-
CV-3171-PMD, 2015 WL 6157306, at *3 (D.S.C. Oct. 19, 2015)).
Here, Clark's declaration includes facts that constitute
hearsay. (Doc. 16-4 ¶ 7 (“I know, from talking to
other home healthcare workers, that Impact classified its
home healthcare workers as independent contractors.”),
¶ 16 (relying in part on statements from other home
healthcare workers), ¶ 23 (same)). The court finds that
it may consider such evidence ...