Court Grants Conditional Certification to Health 'Professionals'

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A federal district court in Georgia granted conditional certification April 13 permitting home health care nurses and therapists to proceed under the Fair Labor Standards Act with a nationwide collective action for overtime pay and other remedies (Rindfleisch v. Gentiva Health Servs. Inc., N.D. Ga., No. 10-cv-3288, 4/13/11).

Gentiva Health Services Inc. argues that its home health workers are FLSA-exempt professional employees who are paid on a fee basis, but Lisa Rindfleisch and other plaintiffs contend that they were paid on the basis of time-based work units and rates that cannot be considered professional fees under Labor Department regulations interpreting the FLSA.

Noting that approximately 40 current and former employees have already consented to participate in the lawsuit, the U.S. District Court for the Northern District of Georgia granted conditional certification of a nationwide collective action that Gentiva estimates may cover 10,000 current and former employees at more than 390 locations across the United States.

Home Health Workers Claim Overtime Violations.

According to the decision, Gentiva employs registered nurses and physical and occupational therapists to provide home health services to patients in 39 states. The employees, referred to as “clinicians,” allege that they travel to patients' homes to deliver care and spend additional time traveling between patients' residences, as well as performing charting and coding tasks in an office and completing charts and medical documentation in their own homes.

Gentiva pays the majority of the clinicians under a pay-per-visit plan, by which the company determines the number of “visit units” involved and pays the clinician for the units based on a preset dollar amount per unit.

For nonvisit work such as attending conferences, training sessions, staff meetings, and orientations, Gentiva pays an amount referred to as a “flat rate,” but the court said it is tied to the time spent by the employee. “For example,” the court said, “0.5--1.5 hours of training equal 1 visit unit, and 1.75--3 hours of training equals 2 visit units.”

Alleging that they worked more than 40 hours in a workweek without receiving overtime compensation, Rindfleisch and four other plaintiffs filed a complaint in the U.S. District for the Eastern District of New York, asserting claims under the FLSA and state wage and hour laws. The lawsuit was transferred to the Northern District of Georgia in October 2010, and the plaintiffs in November 2010 filed a motion for preliminary or conditional certification of the FLSA claims as a collective action.

Gentiva claims the clinicians are professional employees who are exempt from the FLSA's overtime requirements, but the court said the “crux” of the plaintiffs' claims is that since they were not paid on a salary basis, a finding of exempt status for a Gentiva clinician would require the court to conclude that the employee was paid on a “fee basis.”

Citing a DOL regulation, 29 C.F.R. § 541.605, the court said “the exemption is abrogated if an employer pays that employee on both a fee basis and an hourly basis.” The plaintiffs assert that Gentiva's “hybrid plan” precludes finding them to be FLSA-exempt.

Court Grants Motion for Conditional Certification.

The court said that under the two-stage process followed in the U.S. Court of Appeals for the Eleventh Circuit, courts are required to apply a lenient standard in determining whether to grant conditional certification for an FLSA lawsuit to proceed as a collective action. Conditional certification authorizes plaintiffs to provide notice of the action to other employees or former employees who may wish to join in the litigation. Later in the litigation, the court said, it can re-examine the appropriateness of a case for treatment as a collective action if the employer files a motion for decertification.

The district court wrote that “courts have conditionally certified nationwide classes based on far fewer opt-ins who worked in far fewer states,” and it added that it was unpersuaded by Gentiva's arguments that the number of opt-ins was insufficient to justify giving notice of the lawsuit to an estimated 10,000 current and former employees at more than 390 locations.

Finding a factual nexus between the plaintiffs and potential class members, the court said the plaintiffs adequately alleged that they are similarly situated to employees in the proposed nationwide class and that they were subject to a common pay plan. The court acknowledged that some of Gentiva's clinicians were not paid under the plan but said that fact “does not support denying class certification.” Rather, it said, “to the extent that some Clinicians have not been paid under the PPV Plan, those Clinicians will not be part of the Class.”

Granting the plaintiffs' motion for conditional certification, the court ordered the lawsuit to proceed as a collective action covering clinicians employed by Gentiva during a period beginning three years before the date of his order and ending on the date of judgment in the lawsuit. The court denied a request to include speech therapists and medical social workers in the class, noting that the plaintiffs had not listed those job classifications in their federal court complaint.

By Lawrence E. Dube

Text of the decision can be accessed at

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