Brittmon v. Upreach, LLC

• Decision Date: 23 January 2018
• Docket Number: Case No. 2:17–cv–219
• Parties: Latesha BRITTMON, Plaintiff, v. UPREACH, LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

285 F.Supp.3d 1033

Latesha BRITTMON, Plaintiff,

v.UPREACH, LLC, et al., Defendants.

Case No. 2:17–cv–219

United States District Court, S.D. Ohio, Eastern Division.

Signed: January 23, 2018

Robi J. Baishnab, Jason Charles Cox, Robert E. DeRose, II, Barkan Meizlish Handelman Goodin DeRose Wentz, LLP, Matthew James Porter Coffman, Coffman Legal, LLC, Columbus, OH, for Plaintiff.

Jan Elizabeth Hensel, Janay Marie Stevens, Dinsmore & Shohl LLP, Columbus, OH, for Defendants.

OPINION AND ORDER

MICHAEL H. WATSON, JUDGE

Plaintiff Latesha Brittmon ("Plaintiff"), individually and on behalf of all similarly-situated individuals, brings claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), and various Ohio laws against Defendants Upreach, LLC ("Upreach"), Melissa Gourley ("Gourley"), and Beth Hunter ("Hunter") (collectively, "Defendants") to recover unpaid overtime wages. Before the Court is Plaintiff's Motion for Conditional Certification and Court–Supervised Notice to Potential Opt–ln Plaintiffs, ECF No. 4; Defendants' 12(b)(6) Motion to Dismiss, ECF No. 6; Plaintiff's Motion for Leave to File a Sur–Reply Instanter, ECF No. 12; and Plaintiff's Motion to Toll the Statute of Limitations for Potential Opt–ln Plaintiffs, ECF No. 14. The latter three motions have been fully briefed and are ripe for review. For the reasons explained below, the Court DENIES Defendants' Motion to Dismiss, DENIES Plaintiff's Motion for Leave to File a Sur–Reply, and DENIES Plaintiff's Motion to Toll the Statute of Limitations. Additionally, the Court GRANTS in part and DENIES in part Plaintiff's Motion for Conditional Certification and Court–Supervised Notice.¹

I. BACKGROUND

Upreach is a home care staffing agency that employs direct care workers for the developmentally disabled in need of assistance. Gourley is Chief Executive Officer, and Gourley and Hunter are co-owners, of Upreach.

Plaintiff was jointly employed by Defendants as a Support Specialist from approximately February 2015 to approximately July 2016. As a Support Specialist, Plaintiff provided companionship services, domestic services, home care, and other in-home services for individuals with developmental disabilities. Plaintiff alleges that she and similarly situated employees regularly worked more than forty hours per workweek but that, from approximately January 1, 2015, to October 13, 2015, they were not paid one and one-half times their regular rate for each hour worked over forty.

Plaintiff seeks remuneration for unpaid overtime wages on behalf of the following proposed class of FLSA opt-in plaintiffs and Rule 23 putative class members:

All current and former employees of Defendants who have worked as direct support professionals, support associates, caregivers, home health aides, or other employees who provided companionship services, domestic services, home care, and/or other in-home services, and who worked over 40 hours in any workweek beginning January 1, 2015 through October 13, 2015, and were not paid time and a half for the hours they worked over 40.

Compl. ¶¶ 31, 37, ECF No. 1. Plaintiff alleges that the proposed class includes upwards of around 250 similarly situated individuals who worked as, for example, direct support professionals, support specialists, caregivers, home health aides, and others who provided companionship services, domestic services, home care, and other in-home services for Defendants during the relevant time period. Id. at ¶ 32.

What spawned this action, and many others like it, is a change to Department of Labor ("DOL") regulations defining the categories of employees exempted from the FLSA's overtime protections. Subject to specific exceptions, the FLSA generally requires covered employers to pay overtime compensation in the amount of 150% of the employee's regular pay rate for all hours worked in excess of forty hours per week. 29 U.S.C. §§ 206(a), 207(a). In 1974, the FLSA was amended to exempt "domestic service" employees (that is, employees "provid[ing] companionship services for individuals who (because of age or infirmity) are unable to care for themselves") from the FLSA's overtime requirement. 29 U.S.C. § 213(a)(15). The next year, the DOL adopted implementing regulations that, in relevant part, included individuals employed by third parties in its category of exempted employees. 29 C.F.R. § 552.109(a), (c) (2014).

In 2013, the DOL reversed course, adopting a new rule (the "Final Rule" or "Rule") that brought domestic service employees of third-parties within the protections of the FLSA. 29 C.F.R. § 552.6 (2016). The Final Rule was scheduled to become effective on January 1, 2015. Id. ; see also 80 Fed. Reg. 65646 (Oct. 27, 2015).

Prior to its effective date, however, a group of trade associations representing third-party employers of home care workers filed a lawsuit challenging the regulation under the Administrative Procedure Act. In December 2014, the D.C. District Court vacated the Final Rule based on its finding that the Rule was an unreasonable interpretation of federal law and was arbitrary and capricious. Home Care Ass'n of Am. v. Weil, 76 F.Supp.3d 138, 147–48 (D.D.C. 2014). The DOL appealed, and on August 21, 2015, the D.C. Circuit Court reversed the district court's ruling and vacatur of the regulation. Home Care Ass'n of Am. v. Weil, 799 F.3d 1084, 1097 (D.C. Cir. 2015). Thereafter, the DOL issued guidance stating that it would not institute enforcement proceedings for violations of the Final Rule until thirty days after the Court of Appeals issued its mandate. 80 Fed. Reg. 55029 (Sept. 14, 2015). The Court of Appeals issued its mandate on October 13, 2015, and the DOL issued another guidance indicating it would not bring enforcement actions for violations of the Rule until November 12, 2015. 80 Fed. Reg. 65646, 65647 (Oct. 27, 2015). The effect of these court decisions on the Final Rule's effective date is at the heart of this lawsuit.

II. DEFENDANTS' MOTION TO DISMISS

A. Standard of Review

A claim survives a motion to dismiss pursuant to Rule 12(b)(6) if it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all of the complaint's allegations are true." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted).

A court must "construe the complaint in the light most favorable to the plaintiff." Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). In doing so, however, plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ; see also Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."); Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007). "[A] naked assertion ... gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility ...." Twombly, 550 U.S. at 557, 127 S.Ct. 1955. "[S]omething beyond the mere possibility of [relief] must be alleged ...." Id. at 557–58, 127 S.Ct. 1955 (internal citations omitted).

B. Analysis

Defendants' Motion to Dismiss hinges on one crucial unsettled question of law: the effective date of the DOL's Final Rule. Plaintiff alleges that Defendants are liable to their domestic services employees for all unpaid overtime beginning January 1, 2015, the Rule's scheduled date of effectiveness. See 29 C.F.R. § 552.6. Defendants, on the other hand, contend that the Final Rule was not effective until at least October 13, 2015, the date of the D.C. Circuit Court's mandate.

No circuit court has ruled on the Final Rule's effective date, and the district courts to have done so have reached conflicting conclusions. The analysis begins with the general principle that judicial decisions, as opposed to statutes and regulations, apply retroactively. See Harper v. Va. Dep't of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993). According to that principle, when a court "applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the court's] announcement of the rule." Id.

The Undersigned finds that a straightforward application of the Harper retroactivity rule to this case compels the conclusion that the Final Rule became effective as of January 1, 2015. "[W]hen the D.C. Circuit held that the third-party exemption was valid, this holding applied to all prospective defendants for any period after the rule went into effect" on January 1, 2015. Green v. Humana at Home, Inc., 2017 U.S. Dist. LEXIS 162961, at *6 (S.D.N.Y. Sept. 29, 2017). Therefore, Plaintiff may recover any unpaid overtime wages from January 1, 2015, and on.

This holding is in accord with that of a majority of district-court cases that have ruled on this issue. See Dillow v. Home Care Network, Inc., No. 1:16–cv–612, 2017 WL 749196 (S.D. Ohio Feb. 27, 2017) (Black, J.); Richert v. LaBelle HomeHealth Care Serv. LLC, No. 2:16–cv–437, 2017 WL 4349084 (S.D. Ohio Sept. 29, 2017) (Graham, J.); Kinkead v. Humana, Inc., 206 F.Supp.3d 751 (D. Conn. 2016) ; Lewis–Ramsey v. Evangelical Lutheran Good Samaritan Soc'y, 215 F.Supp.3d 805 (S.D. Iowa 2016) ; Cummings v. Bost, Inc., 218 F.Supp.3d 978 (W.D....