United States District Court, D. Nevada
ALMEKA DODDS and LINDA ITRIC, individually, and on behalf of all others similarly situated, Plaintiffs,
US NATIONAL PERSONAL CARE, LLC, and VICTOR VARGAS Defendants.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion to Certify Class for
Conditional Certification and Court-Supervised Notice to
Potential Opt-in Plaintiffs Pursuant to 29 U.S.C. § 216
(b) (ECF No. 15). For the following reason, the Court grants
sued Defendants U.S. National Personal Care, LLC and Victor
Vargas (“Defendants”) on August 15, 2018. ECF No.
1. In their complaint, Plaintiffs asserted violations of 29
U.S.C. § 216(b) (the Fair Labor Standards Act or FLSA),
and various violations of Nevada state wage and hour law.
Plaintiffs sought conditional certification of a collective
pursuant to 29 U.S.C. § 216(b) and certification under
Rule 23 of the Federal Rules of Civil Procedure in the
complaint. Defendants filed their answer on October 1, 2018.
ECF No. 13. Plaintiffs now move for conditional certification
of a collective pursuant to 29 U.S.C. § 216 (b). ECF No.
15. The motion has been fully briefed. ECF Nos. 16, 17. The
Court heard oral argument on this motion on September 5,
2019. ECF No. 23.
alleged as follows in their complaint: Plaintiffs Almeka
Dodds and Linda Itric and those similarly situated are
currently or formerly employed by U.S. National Personal
Care, LLC and Victor Vargas as personal care attendants. For
many years the FLSA did not require employers to pay home
healthcare worker overtime wages. The U.S. Department of
Labor changed its regulations beginning January 1, 2015, so
that home healthcare workers employed by third-party
providers were no longer exempt from the FLSA's overtime
requirements. Application of the Fair Labor Standards Act to
Domestic Service, 78 Fed. Reg. 60, 453 (October 1, 2013) (to
be codified at 29 § C.F.R. 552). Defendants did not
change their payroll practice to match the regulatory change
and continued to pay all employees their regular rate instead
of the one and a half time pay required for work in excess of
40 hours a week. Defendants would also engage in
“check-splitting” by paying employees half of
their wages by direct deposit and the other by check so that
no single pay stub or check stub reflected more than 80 hours
worked per two-week pay period. Employees were required to
travel to the homes of clients to perform personal and
healthcare related services. Defendants would give employees
service plans that described which clients employees were to
visit on that day, each day they were required to visit them,
and times they were expected to arrive and leave the
client's home. Defendants also did not compensate any
personal care attendants for that mid-shift travel time.
attach to their motion two declarations, one from Almeka
Dodds and the other from Linda Itric. ECF Nos. 15-4, 15-5. In
Almeka Dodd's declaration, she states that she was an
hourly employee who worked for Defendants as a home
healthcare worker, or personal care attendant from April 2012
until May 2018. She states that she regularly worked for
Defendants six to seven days each work week and 10-12 hours
each workday. She was compensated for her work through the
payment of an hourly wage of $11.00 an hour. Dodds attaches
paystubs covering 17 two-week pay periods to her declaration
showing that she worked 2, 108.25 hours, including 748.25
overtime hours, but was paid her regular hourly rate of
$11.00 for each hour worked.
Itric's declaration similarly states that she was an
hourly employee who worked for Defendants as a home
healthcare worker, or personal care attendant, from January
2014 until February 2017. She states that she regularly
worked for Defendants six to seven days and 35-60 hours each
work week. For her hours worked Defendants paid her an hourly
wage of $11 per hour. Itric submits paystubs covering 13
two-week pay periods, showing that she worked 1, 307.05
hours, including 187.05 overtime hours, but was paid her
regular hourly rate of $11.00.
attached to their opposition a declaration from Victor
Vargas, the owner and administrator of U.S. National Personal
Care, LLC (“US National”). Vargas states that
most employees of U.S. National are part-time and work fewer
than 30 hours a week. He also states that employees of U.S.
National rarely interact with each other, and they would be
unlikely to have observed employment conditions of other U.S.
National employees. Vargas also stated that because U.S.
National generally hires employees on a part-time base, U.S.
National has a general policy of not assigning overtime
Fair Labor Standards Act (“FLSA”) is a remedial
statute, the purpose of which is to “protect all
covered workers from substandard wages and oppressive working
hours, ‘labor conditions [that are] detrimental to the
maintenance of the minimum standard of living necessary for
health, efficiency and general well-being of workers.”
Barrentine v. Arkansas-Best Freight System,
Inc., 450 U.S. 728 (1981) (citing 29 U.S.C. §
202(a)). FLSA requires covered workers to be paid at least
1.5 times their normal rate for all work in excess of 40
hours weekly, provided the employer has actual or
constructive knowledge that the work is occurring. 29 U.SC.
§ 207(a)(1); 29 C.F.R. § 785.11.
section 216(b) of the FLSA, “workers may join a
collective action if they claim a violation of the FLSA, are
“similarly situated” to the original plaintiff
and affirmatively opt in.” Campbell v. City of Los
Angeles, 903 F.3d 1090, 1108 (9th Cir. 2018) (construing
29 U.S.C. § 216(b)). It is common practice for FLSA
parties to move for preliminary certification pursuant to
§ 216(b). As the Ninth Circuit explains, preliminary
certification “refers to the dissemination of notice to
putative collective members, conditioned on a preliminary
determination that the collective as defined in the complaint
satisfies the “similarly situated” requirement of
section 216(b).” Campbell, 903 F.3d, at 1109.
In evaluating the propriety of the section 216(b) collective,
the Ninth Circuit has endorsed a two-step
“certification” process. Id. at 1100.
The first step requires the plaintiffs to move for
preliminary certification of the collective. Later, after
necessary discovery has been completed, the defendants may
move for “decertification” of the collective
action on the ground that the fully developed record did not
support a finding that the collective was sufficiently
“similarly situated” pursuant to section 216 (b).
FLSA does not define the term “similarly situated,
” but the Ninth Circuit has stated that “[p]arty
plaintiffs are similarly situated, and may proceed in a
collective, to the extent they share a similar issue of law
or fact material to the disposition of their FLSA
claims.” Id. at 1117; Senne v. Kansas City
Royals Baseball Corp. No. 17-16245, 2019 WL 3849564 (9th
Cir. Aug. 16, 2019). “At this early stage of the
litigation, the district court's analysis is typically
focused on a review of the pleadings but may sometimes be
supplemented by declarations or limited other
evidence.” Campbell, 903 F.3d, at 1109.The
Ninth Circuit has ...