Shaw v. Amn Healthcare, Inc.

• Decision Date: 05 July 2018
• Docket Number: Case No. 16-cv-02816-JCS
• Parties: ROBERT SHAW, et al., Plaintiffs, v. AMN HEALTHCARE, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of California

ROBERT SHAW, et al., Plaintiffs, v. AMN HEALTHCARE, INC., et al., Defendants.

Case No. 16-cv-02816-JCS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

July 5, 2018

ORDER GRANTING MOTION FOR CLASS CERTIFICATION, STRIKING MOTION TO STRIKE AND GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTION FOR LEAVE TO FILE SURREPLY

Re: Dkt. No. 105, 122, 125

I. INTRODUCTION

Plaintiffs in this putative class action are employed by Defendant AMN Healthcare, Inc. ("AMN"), a labor contractor that recruits and places traveling nurses at various healthcare facilities across the United States. They assert wage and hour claims under California laws governing the payment of overtime and provision of meal and rest periods. Presently before the Court is Plaintiffs' Motion for Class Certification ("Motion") in which Plaintiffs ask the Court to certify a class under Rule 23(b)(2) and (3) of the Federal Rules of Civil Procedure of traveling nurses employed by AMN who have worked at Kaiser Foundation Hospitals in California during the proposed class period. A hearing on the Motion was held on June 8, 2018. For the reasons stated below, the Motion is GRANTED.¹

II. BACKGROUND

A. Factual Background

1. Nursing Shortages at Kaiser Facilities

In the healthcare industry, nursing shortages are a widespread problem. See Declaration of Joshua Konecky in Support of Motion for Class Certification ("Konecky Decl."), Ex. 9 (May 28,2015 New York Times Article, "We Need More Nurses"). Defendants' expert, Suzanne Boyle, testified at her deposition that there has been a nationwide nursing shortage throughout her entire career and that "every nurse executive [she] know[s] struggles with staffing shortages simply as part of the role." Piller Reply Decl., Ex. 19 (Boyle Depo.) at 24-26. According to news reports, these shortages have affected Kaiser facilities as well, leading to protests at numerous Kaiser facilities led by the California Nurses Association ("CNA"). See Konecky Decl., Ex. 11 (September 18, 2017 Santa Rosa Press Democrat article entitled "Kaiser Nurses hold protest rally in Santa Rosa for more staffing"); id., Ex. 12 (October 31, 2017 Press Release by CNA entitled "Kaiser Nurses to Hold Information Pickets Across CA Thursday for Safer Care"). Kaiser contracts with companies such as AMN for temporary nurses who work short-term assignments in facilities or units that face staffing challenges. See Piller Reply Decl., Ex. 21 (Deposition of Kaiser Manager Elizabeth Carreon) ("Carreon Depo.") at 58.

2. The Relationship Between AMN and Kaiser

Defendant AMN is a leading healthcare staffing company that contracts with healthcare facilities to deliver "short-term staffing solutions" by providing skilled healthcare professionals, including Registered Nurses ("RNs") and Licensed Practical Nurses ("LPNs") (collectively, "traveling nurses"). Declaration of Lisa Larson in Support of Defendants' Opposition to Plaintiffs' Motion for Class Certification ("Larson Decl.") ¶ 2. Defendants Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Inc. and the Permanente Medical Group, Inc. (collectively, "Kaiser") have a contract with AMN under which AMN supplies traveling nurses to Kaiser hospitals and medical offices throughout California. Id. ¶ 3 & Ex. 1 ("Amended and Restated Agreement for the Temporary Staffing of Clinical Services") (excerpt). Under the contract, AMN is considered the "employer" and is responsible for ensuring adherence to California's wage and hour laws with respect to its traveling nurses placed in Kaiser facilities. Konecky Decl., Ex. 13 (Deposition of Kristen Mussman, Kaiser's Rule 30(b)(6) Person Most Knowledgeable ("Kaiser PMK Depo.") at 41; see also Konecky Decl., Ex. 2 (Deposition of Lisa Larson, AMN's 30(b)(6) Person Most Knowledgeable ("AMN PMK Depo.")) at 170 (testifying that there is no person or department at Kaiser responsible for ensuring that AMN's travelingnurses do not work off-the-clock at Kaiser facilities). The contract also contains an indemnification provision which insulates Kaiser from "any and all situations related to the nurses that AMN employs and provides to Kaiser." Konecky Decl., Ex. 13 (Kaiser PMK Depo.) at 38.

According to AMN, between September 11, 2013 and December 4, 2017, 6,772 clinicians employed by AMN worked at least one assignment at a Kaiser facility in California. Larson Decl. ¶ 5. On average, an assignment at a Kaiser facility is for thirteen weeks on a schedule of 36-40 hours a week, depending on whether the facility operates on eight or twelve hour shifts. Konecky Decl., Ex. 13 (Kaiser PMK Depo.) at 13-16. Defendants do not dispute that the vast majority of the putative class members in this case work 12-hour shifts. Kaiser pays AMN at a contractual rate that is based on the hours worked by AMN traveling nurses at Kaiser facilities, which includes a premium rate for overtime hours. Id. at 13, 69.

3. Scheduling and Supervision of AMN Traveling Nurses at Kaiser Facilities

Kaiser is responsible for setting the schedules of AMN employees who are assigned to its facilities in California. Konecky Decl., Ex. 13 (Kaiser PMK Depo.) at 167; see also id, Ex. 2 (AMN PMK Depo.) at 181 (testifying that it is AMN's general policy that its traveling nurses comply with the scheduling policies and practices of the facility to which they are assigned). AMN does not provide scheduling support for traveling nurses assigned to Kaiser facilities. Konecky Decl., Ex. 2 (AMN PMK Depo.) at 12-13. Similarly, AMN traveling nurses assigned to Kaiser facilities are supervised by Kaiser employees while they work at those facilities. Id. at 147. This supervision includes the provision of meal and rest breaks for AMN traveling nurses and the approval of overtime. Konecky Decl., Ex. 13 (Kaiser PMK Depo.) at 88-89, 98; see also id., Ex. 2 (AMN PMK Depo.) at 95-96 (overtime is approved by managers at Kaiser facilities and AMN does not monitor how Kaiser implements its overtime approval process). AMN traveling nurses who encounter problems can contact its Customer Support line between 5 a.m. and 5 p.m. Pacific time. Id., Ex. 2 (AMN PMK Depo.) at 76-77. Although there are AMN representatives at some Kaiser facilities, that is the exception rather than the rule. Id., Ex. 13 (Kaiser PMK Depo.) at 56.

4. Duties of AMN Traveling Nurses at Kaiser Facilities

AMN traveling nurses assigned to Kaiser facilities are expected to meet the same standards as Kaiser nurses and carry out the same core duties. Id. at 58. These duties include developing and implementing a plan of care for each patient, responding to patient calls and alarms, communicating at the end of their shift with nurses who are taking over their patients' care ("hand-off"), and entering information about patients' health care picture into Kaiser's electronic healthcare documentation system ("charting"). Id. at 58-60, 62, 76-77. The hand-off involves "thorough and complete verbal and written communication" with the oncoming shift about each patient and typically occurs after the next shift completes its start-of-shift "huddle." Konecky Decl., Ex. 2 (AMN PMK Depo.) at 38-39. Ethical and professional standards require that all nurses, including AMN traveling nurses, complete the "hand-off" for their patients, regardless of whether they must work overtime to do so or whether they are compensated for that time. Piller Reply Decl., Ex. 19 (Boyle Depo.) at 127-128.

Plaintiffs offer declarations of putative class members attesting that the overlap between shifts often is not long enough to complete the hand-off during their scheduled shift. See, Compendium of Class Member Declarations in Support of Plaintiffs' Motion for Class Certification ("Plaintiffs' Compendium of Declarations"), Corona Teitelbaum Decl. ¶ 11; Kucharski Decl. ¶¶ 14-15, 18; Boyd Decl. ¶ 12; Bridges Decl. ¶¶ 9-10; Broesicke Decl. ¶¶ 9-10; Ciervo Decl. ¶¶ 14-16; Dagasgas Decl. ¶¶ 8-14; Jennings Decl. ¶¶ 10-12; Johnson Decl. ¶¶ 11-12; Jones Decl. ¶ 12; Joiner Decl. ¶¶ 9-12; Lacey Kelley Decl. ¶¶ 9-10; Macey Kelley Decl. ¶¶ 13-16; Kravitz Decl. ¶¶ 11-12; Krouse Decl. ¶¶ 9-10; Landry Decl. ¶¶ 11-13; Lukhi Decl. ¶¶ 9-10; Luzzo Decl. ¶¶ 9-10; Marcellin Decl. ¶¶ 10-11; Morse Decl. ¶¶ 10-12; Mottola Decl. ¶¶ 12-13; Nava Decl. ¶¶ 15-19; Parks Decl. ¶¶ 10-11; Reynosa-Juarez Decl. ¶¶ 11-13; Sampin Decl. ¶¶ 11-12; Smith Decl. ¶¶ 10-11; Stuart Decl. ¶¶ 13-16; Threadgill Decl. ¶¶ 10-11; Varner Decl. ¶¶10-11; Williams Decl. ¶¶ 10-12; Womack Decl. ¶¶ 11-13. The putative class members also offer testimony that the requirement to complete detailed charting causes them to have to perform post-shift work on a regular basis. Id.; see also Konecky Decl., Ex. 17 (Deposition of Jennifer Corona Teitelbaum ("Corona Teitelbaum Depo.")) at 92-93, 118 (testifying that charting may bedelayed because patient care comes first and that charting sometimes caused her to work after scheduled shift); id., Ex. 18 (Deposition of Candy Kucharski ("Kucharski Depo.") at 140 (same); id., Ex. 21 (Deposition of Robert Shaw ("Shaw Depo.") at 134 (same). Indeed, AMN's PMK states in her declaration that AMN traveling nurses "regularly" work overtime at Kaiser facilities. Larson Decl. ¶ 39.

AMN traveling nurses also must abide by Kaiser's mission statement and policies, which include putting the patient first. Konecky Decl., Ex. 13 (Kaiser PMK Depo.) at 69-70, 180-181, 186. If an AMN traveling nurse fails to meet this requirement, Kaiser will notify AMN that the individual is not performing according to expectations and AMN must remove the individual from the assignment. Id. at 57-58; see also Konecky Decl., Ex. 2 (AMN PMK Depo.) at 159 (recognizing that violation of facility rules or neglect of duty are grounds for immediate termination of the assignment). Further, if an AMN traveling nurse fails to meet regulatory standards of care, for example, by abandoning a patient, Kaiser notifies AMN that it must file a report with the...