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McKinstry v. Developmental Essential Services, Inc.

United States District Court, E.D. Michigan, Southern Division

March 1, 2017

TERRI MCKINSTRY, Plaintiff,
v.
DEVELOPMENTAL ESSENTIAL SERVICES, INC. and DION E. SCHARF, Defendants.

          OPINION AND ORDER GRANTING MOTION FOR CONDITIONAL CERTIFICATION AND APPROVAL OF NOTICE [12]

          STEPHEN J. MURPHY, III United States District Judge.

         Plaintiff Terri McKinstry filed a collective action complaint against the Defendants Developmental Essential Services, Inc. ("DES") and Dion Scharf pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. Before the Court is McKinstry's motion for conditional collective action certification for notice purposes under 29 U.S.C. § 216(b). For the following reasons, the Court will grant the motion.

         BACKGROUND

         McKinstry, and others on whose behalf she brought suit, were healthcare workers employed in group homes that were owned and/or operated by Defendants or their affiliates. Compl. ¶¶ 15-16, ECF No. 1. As the owner, manager, and/or executive officer, Scharf allegedly exercised authority and control over DES's payroll practices, business activities, and the employees' work arrangements. Id. ¶¶ 34-38. Whether they were paid an hourly rate without overtime or a salary based on hours worked, McKinstry alleges that she and others were not properly compensated for hours worked over 40 in a work week. Id. ¶¶ 17-21. They collectively seek to recover the unpaid overtime compensation as the following conditionally certified class:

All current or former healthcare workers employed by Developmental Essential Services, Inc. and/or Dion E. Scharf, and/or any of its or their affiliated entities who were not paid overtime for all hours worked over 40 in a work week from June 29, 2013 to the present.

Id. ¶ 10.

         LEGAL STANDARD

         The FLSA allows "any one or more employees for and in behalf of himself or themselves and other employees similarly situated" to sue for recovery of overtime compensation. 29 U.S.C. § 216(b). Thus, a plaintiff "who has suffered only small monetary harm can join a larger pool of similarly situated plaintiffs." O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 586 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (2016). A "collective action" requires Plaintiffs to (1) "actually be similarly situated" and (2) "signal in writing their affirmative consent to participate." Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) (quotations omitted). Once a district court determines "whether plaintiffs have shown that the employees to be notified are, in fact, similarly situated, " it may "authorize notification of similarly situated employees to allow them to opt into the lawsuit." Id. (quotations omitted).

         The FLSA does not define "similarly situated, " but the Sixth Circuit has provided some parameters for the analysis: (1) FLSA plaintiffs may still be similarly situated notwithstanding individualized questions of fact that would preclude class certification under "the more stringent criteria" of Civil Rule 23, O'Brien, 575 F.3d at 584; (2) FLSA plaintiffs need not demonstrate "a 'unified policy' of violations" to establish that they are similarly situated, id.; and (3) positions held by the plaintiff and the putative class members need only be similar - not identical, Comer, 454 F.3d at 546-47 (quoting district court opinion). Overall, the standard for authorizing notice is fairly lenient, and requires only "a modest factual showing." Id. at 547 (quotation omitted).

         DISCUSSION

         To support her motion, McKinstry provides declarations and pay stubs from herself and opt-in plaintiffs Lisa McKinstry, Becky Ferree, and Heather Doss. See ECF Nos. 12-3, 12-4, 12-5, 12-6. She argues that reading the documents in concert with the allegations in the Complaint show that the employees were paid either a fixed salary and hourly pay (the McKinstrys and Ferree), or only hourly pay (Doss), they were regularly required to work over 40 hours a week, and they were not paid overtime for the extra hours. Mot. Cert. 12-13, ECF No. 12; see T. McKinstry Decl. ¶¶ 9, 10, ECF No. 12-3; L. McKinstry Decl. ¶¶ 9, 10, ECF No. 12-4; Ferree Decl. ¶¶ 9, 10, ECF No. 12-5; Doss Decl. ¶ 11, ECF No. 12-6.

         Specifically, McKinstry claims the declarations show that Defendants' pay policies subjected the employees to the same unlawful practices at several different locations. The employees' declarations state the following:

• They worked in non-supervisory capacities with two other healthcare workers at multiple group homes. Id. ¶¶ 7, 8, 20 (the McKinstrys and Ferree), ¶¶ 7, 8, 19 (Doss);
• Their stated job duties were substantially similar: monitoring, communicating with, providing meals to, and attending to the medical needs of, the patients; documenting the patients' medical care; and providing various household services. I ...

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