FLSA Conditional Certification Denied in NYS for 5,000 Home Care Workers

Date   Aug 22, 2016

Executive Summary. In a case with far reaching implications, Cowell v. Utopia Home Care, Inc., 2:14-cv-00736-LDW-SIL, Magistrate Judge Steven Locke of the Eastern District of New York (covering Brooklyn, Queens and Long island) ruled that claims of failure to pay home care workers for hours worked and overtime are not suitable for a collective action where the workers' conditions of employment vary so much between different home care workers and even for the same worker when working for different patients. This could prove to be a very important decision for the home care industry in New York, which has been battered by collective and class action complaints by a very active plaintiff attorneys bar. Every home care agency in New York is a potential target because home care workers can recover double damages and their attorneys’ fees if they prevail.

The Judge's Findings of Fact. The plaintiff’s attorneys sought conditional collective action status for unpaid overtime for up to 5,000 home health aides (HHA) and personal care attendants (PCA) employed over a three year period across six states. In this case, the Court considered federal law as it existed prior to the effective date of the U.S. DOL’s Application of the FLSA to Domestic Service: Final Rule. The plaintiff’s attorneys were asking the Court to order that the names and addresses of all HHAs and PCAs be turned over so these workers could be notified of the case and given an opportunity to join it. Though Magistrate Judge Locke noted that at the conditional certification stage, plaintiffs “need only make a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law,” he found the plaintiff in this case had failed to meet even this low burden. To the contrary, the court found that “the unique and individualized Plans of Care that are prepared for Utopia's patients and which Utopia HHAs are required to follow result in very fact-specific inquiries that are not susceptible to a similarly-situated person analysis that would support the issuance of a collective action notice.”

Lessons Learned. For a home care agency with hundreds of home care workers a collective or class action can quickly become a “bet-the-company” case. Based on Magistrate Judge Locke's decision, if the right policies, procedures, and practices are in place at an agency and “nothing more than substantial allegations are made that the putative class members were together the victims of a single decision, policy or plan,” (emphasis added) a conditional certification can be defeated. Our office represented Utopia Home Care in this case. To strengthen your defenses against collective and class actions, take each of the following actions:

  1. Develop written work policies, procedures and practices that will require a fact-intensive analysis for each home care worker of factors that will differ from worker to worker depending on the patient's needs and condition.
  2. Pay home care workers in accordance with the FLSA's overtime and hours worked rules (e.g., paying properly for intra-day travel time, engaged to wait time, on-call time, and training time).
  3. Comply with the NYS Domestic Workers Bill of Rights (e.g., 1-1/2 times pay for hours worked on a seventh work day in a workweek, 3 paid days' “rest” and, in NYC, 2 paid days’ sick leave for qualified workers, and no exemption from weekly overtime even if the worker is classifiable as an exempt “companion” under federal law); and pay an additional hour for “spread-of-hours” or split shifts under NY Labor Law.
  4. Comply with the NYS Wage Parity Act, including its “annualization principle” for benefit costs where benefits are provided both to workers who worked Medicaid reimbursable hours and those who do not or where non-Medicaid reimbursable hours are considered in determining eligibility for benefits.

If you have any questions regarding this Alert, please contact the authors, Stephen Zweig, the Managing Partner of FordHarrison’s New York office, at, or Philip Davidoff, a partner with this office, at, or any member of the FordHarrison Home Care Industry Group.