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Ginger Outlaw, For Herself and All Others v. Secure Health L.P. and Hometown Nursing & Rehabilitation Center

August 2, 2012

GINGER OUTLAW, FOR HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF ::
v.
SECURE HEALTH L.P. AND HOMETOWN NURSING & REHABILITATION CENTER, DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court for disposition is plaintiff's motion for the conditional class certification of similarly situated persons pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 216(b). (Doc. 17). The motion has been briefed and is ripe for disposition.

Background

Plaintiff Ginger Outlaw (hereinafter "plaintiff"), a resident of Carbon County, Pennsylvania, worked as a Licensed Practical Nurse at Defendant Hometown Nursing & Rehabilitation Center (hereinafter "Hometown") from October 6, 2010 to January 27, 2011. (Doc. 1, Compl. (hereinafter "Compl.") ¶ 5; Doc. 17-2, Ex. A, Outlaw Decl. (hereinafter "Outlaw Decl.") ¶ 2). During this time period, plaintiff worked several different shifts, in various parts of the facility and with many other employees. (Outlaw Decl. ¶ 3). Hometown is located in Tamaqua, Pennsylvania and is owned and controlled by Defendant Secure Health, L.P. (hereinafter "Secure Health") (Compl. ¶ 7; Doc. 2, Answer (hereinafter "Answer") ¶ 7). Secure Health is a limited partnership that also owns and controls the Pennsylvania-based Mt. Carmel Senior Living Community (hereinafter "Mt. Carmel") and the Shenandoah Manor Nursing Center (hereinafter "Shenandoah"). (Compl. ¶ 6; Doc. 16, Stipulation dated Dec. 12, 2011).

Plaintiff contends that she was subjected to unofficial policies requiring her to perform uncompensated work in excess of her 40-hour work week. Plaintiff asserts that other employees at Hometown, Mt. Carmel and Shenandoah were subjected to similar unofficial policies.

Specifically, plaintiff asserts that she arrived at work approximately ten minutes before the start of her scheduled shifts pursuant to Hometown's "timeliness" policy. (Outlaw Decl. ¶¶ 4-6). When she arrived, Hometown management instructed plaintiff to perform pre-shift work, which included receiving pass down instructions, meeting with supervisors, checking equipment, collecting pills for distribution to patients and other duties. (Id. ¶¶ 7-8). Although Hometown's timekeeping system tracked plaintiff's pre-shift work time, plaintiff was not paid accordingly for this time because Hometown "rounded" her time down. (Id. ¶ 9). Because of her personal experiences and conversations with staff, plaintiff believes that other Secure Health employees were also subjected to, and affected by, the same pre-shift policy. (Id. ¶ 10).

Plaintiff also asserts that she was required to work approximately 80% of the time during her thirty minute uncompensated meal breaks. (Id. ¶¶ 11, 13). Hometown management encouraged plaintiff to perform meal break work, which included providing patient care, responding to emergency situations, following supervisors' instructions, completing paperwork and other duties. (Id. ¶¶ 13-14). However, plaintiff contends that she was not compensated appropriately for the extra work because Hometown programmed their timekeeping system to automatically deduct a thirty minute meal break period from her daily total hours worked. (Id. ¶¶ 12, 15). Because of her personal experiences and conversations with staff, plaintiff believes that other Secure Health employees were also subjected to, and affected by, the same meal break policy.*fn1 (Id. ¶ 16).

Additionally, plaintiff asserts that she was required to maintain her uniform outside of regular working hours. (Id. ¶¶ 17-19). Hometown management instructed her to perform, and witnessed the results of, the regular washing, spot cleaning, drying and ironing of her uniform and shoes. (Id. ¶¶ 20, 22). Although she completed between two and three hours of uniform maintenance each week, plaintiff was not paid accordingly. (Id. ¶¶ 20, 23). Because of her personal experiences and conversations with staff, plaintiff believes that other Secure Health employees were also subjected to, and affected by, the same uniform maintenance policy. (Id. ¶ 24).

Plaintiff claims that defendants violated the FLSA, by knowingly requiring her and other employees at Hometown, Mt. Carmel and Shenandoah to perform uncompensated (1) pre-shift (2) meal break and (3) uniform maintenance overtime work. Consequently, plaintiff moves to conditionally certify the above-captioned case as a collective action pursuant to 29 U.S.C. § 216(b). Because FLSA class actions are done on an opt-in basis (i.e. class members must elect to join the lawsuit), plaintiff seeks to send notice of this action to all similarly situated, non-exempt, hourly employees who are potentially members of the pre-shift, meal break and/or uniform maintenance subclasses. The parties were in discovery for six months prior to the instant motion, bringing this case to its current posture.

Jurisdiction

The instant suit is brought under the FLSA, which "may be maintained against any employer . . . in any Federal or State court of competent jurisdiction . . . ." 29 U.S.C. § 216(b).Accordingly, the court has federal question jurisdiction. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.")

Standard of Review

The FLSA forbids employers from implementing a workweek of more than 40 hours unless overtime is paid for the time worked in excess. 29 U.S.C. § 207. The FLSA provides a private right of action to recover for violations of the FLSA, including a class action lawsuit. See 29 U.S.C. § 216(b). Section 216(b) provides in pertinent part:

An action to recover the liability prescribed in either the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in ...


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