You're viewing Docket Item 46 from the case Lawrence v. Maxim Healthcare Services, Inc.. View the full docket and case details.

Download this document:




Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 1 of 32. PageID #: 606

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

CLEVELAND DIVISION

JASMINE LAWRENCE, individually
and on behalf of all similarly
situated individuals,

Plaintiff,

vs.

MAXIM HEALTHCARE SERVICES,
INC., a Maryland Corporation,

Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 1:12-cv-02600-CAB

Honorable Christopher A. Boyko

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR CONDITIONAL

CERTIFICATION, COURT-SUPERVISED NOTICE TO POTENTIAL OPT-IN
PLAINTIFFS PURSUANT TO 29 U.S.C. § 216(b), AND EXPEDITED DISCOVERY

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 2 of 32. PageID #: 607

TABLE OF CONTENTS

Page

B.

INTRODUCTION ................................................................................................................. 1
FACTUAL BACKGROUND................................................................................................ 2
STANDARD GOVERNING SECTION 216(b) CERTIFICATION ..................................... 5
A.

The Purpose Of Court-Authorized Notice Is To Promote Efficiency Where A
Class Of “Similarly Situated” Employees Exists........................................................ 5
Plaintiff Has The Burden Of Making A Factual Showing That The Proposed
Class Is Similarly Situated.......................................................................................... 5
CONDITIONAL CERTIFICATION SHOULD BE DENIED............................................... 7
A.

Plaintiff Has No Basis In Fact Or Law To Seek A Broad Class Of “In-Home
Health Care Workers.”................................................................................................ 7
Even If Plaintiff’s Proposed Class Were Limited To HHAs, Plaintiff Has
Failed To Demonstrate That She And The Opt-In Plaintiffs Are Similarly
Situated To The Members Of The Proposed Class..................................................... 8
1.

2.

3.

4.

5.

6.

Each Patient Has A Unique Plan Of Care And, Therefore, The HHA’s
Duties Vary From Patient To Patient.............................................................. 9
The Time Spent On Various Duties Performed By The HHAs Varies
From Patient To Patient ................................................................................ 11
The Number Of Patients Assigned To An HHA May Dictate The
Types Of Duties Performed, And How Often They Are Performed ............ 12
The HHA’s Duties Vary Depending On The Program Or Policy That
Covers The Patient........................................................................................ 12
The HHAs’ Schedules Vary And Impact The Type Of Work That
They Perform ................................................................................................ 13
The Patient’s Environment Also Impacts The Types Of Duties The
HHAs Perform .............................................................................................. 13
The HHAs’ Training Varies By Location..................................................... 14

7.
Evaluating The Applicability Of The Companionship Services Exemption To
Each HHA Will Require Highly Individualized Determinations ............................. 14
Putative Class Members Are Not Similarly Situated As To A Uniform Illegal
Policy ........................................................................................................................ 20
1.

The Classification Of All HHAs As Exempt Does Not Constitute A
Common Unlawful Policy That Warrants Conditional Certification ........... 20
Job Postings Do Not Constitute A Common Policy That Warrants
Conditional Certification .............................................................................. 21
Plaintiff’s Proposed Form And Method Of Notice Is Inappropriate .................................... 23

2.

I.
II.
III.

IV.

V.

B.

C.

D.

i

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 3 of 32. PageID #: 608

TABLE OF CONTENTS

(continued)

Page

VI.

VII.

Proposed Putative Class Members’ Personal Identifying Information Should Not Be
Provided To Plaintiff’s Counsel............................................................................................ 24
CONCLUSION..................................................................................................................... 24

ii

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 4 of 32. PageID #: 609

CASES

TABLE OF AUTHORITIES

Page(s)

Adair v. Wis. Bell, Inc.,

No. 08-C-280, 2008 WL 4224360 (E.D. Wis. Sept. 11, 2008)................................................. 5

Armstrong v. Weichert Realtors,

No. 05-3120, 2006 WL 1455781 (D.N.J. May 19, 2006)......................................................... 9

Arrington v. Mich. Bell Tel. Co.,

No. 10-10975, 2011 WL 3319691 (E.D. Mich. Aug. 1, 2011)............................................. 5, 6

Baden-Winterwood v. Life Time Fitness,

2:06 CV 99, 2006 WL 2225825 (S.D. Ohio Aug. 2, 2006).................................................... 23

Basco v. Wal-Mart Stores, Inc.,

No. Civ. A. 00-3184, 2004 WL 1497709 (E.D. La. July 2, 2004)............................................ 6

Beetler v. Trans-Foam, Inc.,

5:11CV132, 2011 WL 6130805 (N.D. Ohio Dec. 8, 2011).................................................... 23

Bunyan v. Spectrum Brands, Inc.,

No. 07-CV-0089-MJR, 2008 WL 2959932 (S.D. Ill. July 31, 2008) ......................... 17, 20, 22

Burdine v. Covidien, Inc.,

10-CV-194, 2011 WL 2971186 (E.D. Tenn. July 21, 2011) .................................................. 23

Carlson v. Leprino Foods, Co.,

No. 1:05-CV-798, 2006 WL 1851245 (W.D. Mich. June 30, 2006)...................................... 23

Cason v. Vibra Healthcare,

No. 10-10642, 2011 WL 1659381 (E.D. Mich. May 3, 2011) ................................................. 6

Colson v. Avnet, Inc.,

687 F. Supp. 2d 914 (D. Ariz. 2010) ................................................................................ 21, 22

Dellarussiani v. Ed Donnelly Enters, Inc.,

468 F. App’x. 479 (6th Cir. 2012) ............................................................................................ 6

Espenscheid v. DirectSat USA, LLC,

No. 09-625, 2010 WL 2330309 (W.D. Wis. June 7, 2010).................................................... 24

Forney v. TTX Co.,

No. 05 C 6257, 2006 WL 1030194 (N.D. Ill. Apr. 17, 2006)................................................. 22

Gonzales v. Hair Club for Men Ltd., Inc.,

No. 6:06-cv-1762-Orl-28JGG, 2007 WL 1079291 (M.D. Fla. Apr. 9, 2007)........................... 9

iii

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 5 of 32. PageID #: 610

Harrison v. McDonald’s Corp.,

411 F. Supp. 2d 862 (S.D. Ohio 2005) ..................................................................................... 5

Hoffman-La Roche Inc. v. Sperling,

493 U.S. 165 (1989).................................................................................................................. 5

Holt v. Rite Aid Corp.,

333 F. Supp. 2d 1265 (M.D. Ala. 2004) ....................................................................... 5, 16, 20

Howard v. Securitas Sec. Servs., USA Inc.,

No. 08-2746, 2009 WL 140126 (N.D. Ill. Jan. 20, 2009)....................................................... 24

Johnson v. Bridges of Ind., Inc.,

No. 2:10-cv-153-WTl-WGH, 2010 U.S. Dist. LEXIS 103696 (Sept. 28, 2010).............. 17, 21

Lindberg v. UHS of Lakeside, LLC,

761 F. Supp. 2d 752 (W.D. Tenn. 2011)................................................................................. 23

Mathews v. ALC Partner, Inc.,

2:08-CV-10636, 2009 WL 2591497 (E.D. Mich. Aug. 24, 2009).......................................... 23

Moore v. PNC Bank, N.A.,

No. 12-1135 (W.D. Penn. May 29, 2013)............................................................................... 21

Myers v. Hertz Corp.,

624 F. 3d 537 (2d Cir. 2010)..................................................................................................... 5

Nogueda v. Granite Masters, Inc.,

No. 2:09-CV-374, 2010 WL 1521296 (N.D. Ind. Apr. 14, 2010) ............................................ 6

O’Brien v. Ed Donnelly Enters., Inc.,

575 F.3d 567 (6th Cir. 2009) .............................................................................................. 6, 20

Oetinger v. First Residential Mortg.Network,

No. 3:60-CV-381-H, 2009 WL 2162963 (W.D. Ky. July 16, 2009)...................................... 20

Olivo v. GMAC Mortg. Corp.,

374 F. Supp. 2d 545 (E.D. Mich. 2004).............................................................................. 6, 20

Persin v. Career Builders, LLC,

No. 05 C 2347, 2005 U.S. Dist. LEXIS 23095 (N.D. Ill. Sept. 21, 2005).............................. 22

Rutledge v. Claypool Elec., Inc.,

No. 2:12–cv–0159, 2013 WL 435058 (S.D. Ohio Feb. 5, 2013)............................................ 17

Severin v. Project OHR, Inc.,

No. 1:10-cv-09696-DLC................................................................................................... 18, 19

Shipes v. Amurcon Corp.,

10-14943, 2012 WL 1720615 (E.D. Mich. May 16, 2012) .................................................... 23

iv

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 6 of 32. PageID #: 611

Snide v. Disc. Drug Mart, Inc.,

1:11CV0244, 2011 WL 5434016 (N.D. Ohio Oct. 7, 2011) (N.D. Ohio Nov. 8, 2011) ........ 23

Songer v. Sillon Res., Inc.,

569 F. Supp. 2d 703 (N.D. Tex. 2008) ..................................................................................... 9

Trinh v. JP Morgan Chase & Co.,

No. 07-1666, 2008 WL 1860161 (S.D. Cal. Apr. 22, 2008)............................................ passim

Vennett v. Am. Intercont’l Univ. Online,

No. 05-4889, 2006 WL 908030 (N.D. Ill. Apr. 5, 2006)........................................................ 24

West v. Border Foods, Inc.,

No. 05-2525, 2006 WL 1892527 (D. Minn. July 10, 2006) ..................................................... 6

Xavier v. Belfour USA Group, Inc.,

585 F. Supp. 2d 873 (E.D. La. 2008)........................................................................................ 6

STATUTES

29 U.S.C. § 213............................................................................................................................. 20

29 U.S.C. § 213(a)(15).................................................................................................................. 15

29 U.S.C. § 216(b) ........................................................................................................................ 20

29 U.S.C. § 216(b) ........................................................................................................................ 20

OTHER AUTHORITIES

29 C.F.R. § 552.6.......................................................................................................................... 16

29 C.F.R. § 552.6.................................................................................................................... 15, 19

v

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 7 of 32. PageID #: 612

I.

INTRODUCTION

Plaintiff was formerly employed as a Home Health Aide (“HHA”) for Defendant Maxim

Healthcare Services, Inc. (“Maxim” or “Defendant”), reporting to its Mansfield, Ohio office, and

now seeks conditional certification of a nationwide class consisting of “all hourly in-home health

care workers,” which includes HHAs, nurses, therapists, and medical social workers (Motion

“Mot.” at 2), despite the fact that she and the two other declarants were employed as HHAs. See

Mot. Exs. D-E. The essence of Plaintiff’s brief legal analysis is that the “evidentiary burden at this

stage is not a heavy one,” and, therefore, the Court should grant the Motion almost as a matter of

right. See Mot. at 7 (citation omitted). Plaintiff’s argument fails for multiple reasons.

First, Plaintiff’s purported class is unreasonable, impermissibly broad and without any

support. The sparse evidence that Plaintiff proffers in support of her Motion relates solely to the

HHA position; she offers no evidence whatsoever relating to nurses, therapists, medical social

workers or any other in-home health care workers. See, e.g., Mot. Exs. C-H. Furthermore, the

essence of Plaintiff’s FLSA claim is that she and other HHAs nationwide were misclassified as

exempt under the companionship services exemption of the FLSA, because they allegedly

performed general household work more than 20 percent of the time. See Sec. Am. Compl. ¶¶ 15-

26, 33-34. Notwithstanding these facts, Plaintiff seeks an impermissibly broad class consisting of

other job classifications, including nurses, therapists and medical social workers. See infra § 4(A).

Second, Plaintiff has failed to show that HHAs, let alone all hourly in-home health care

workers, nationwide are similarly situated on material issues such that a collective action would

advance judicial efficiency.

Third, the central issue in this case is whether HHAs qualify for the FLSA’s companionship

services exemption. See Sec. Am. Compl. ¶¶ 15-26, 33-34. That issue will require individualized

inquiries into each HHA’s actual day-to-day duties on a weekly basis; it is not a one-time

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 8 of 32. PageID #: 613

determination. Tellingly, Plaintiff fails even to identify the exemption at issue in her Motion, let

alone discuss how common evidence can be used to satisfy its components.

Fourth, conditional certification should be denied because Plaintiff fails to establish that she

and the proposed putative class were “victims of a common policy or plan that violated the law.”

Mot. at 7 (emphasis added; citation omitted). Plaintiff argues that conditional certification is

warranted because Maxim “refus[ed] to pay overtime” and instead paid Plaintiff and other “In-

Home Health Care Workers” straight time for all hours worked. See Mot. at 10-11. Courts have

repeatedly rejected the very same argument, because blanket exemptions do not control how

employees actually spend their time and, therefore, do not reduce the individualized inquiries

necessary to evaluate the exemption.

Ultimately, armed with little more than her own cursory, summary allegations and nearly

identical declarations from two others, Plaintiff has sought to certify a nationwide collective action

consisting of tens of thousands of employees. The authorities relied upon by Plaintiff in her

Motion, together with a review of applicable FLSA collective action jurisprudence, demonstrate

that there is no reasonable basis or authority for the certification, notice or expedited discovery

sought by Plaintiff. Therefore, this Court should deny Plaintiff’s Motion.

II.

FACTUAL BACKGROUND

Maxim is a nationwide provider of home healthcare, medical staffing, and wellness services

for individuals with chronic conditions, recovering from illness, or in need of daily assistance. See

Decl. Markewicz ¶ 3.1 Maxim provides its patients with in-home placement of HHAs to provide

personal care services, including, but not limited to: bathing; hair care; nail care; shaving; dressing;

bathroom activities; skin care; positioning/placing patients; assisting with ambulation and transfer

of patients; assisting patients with exercise; meal preparation and feeding; maintaining a safe and


1 Declaration of Jeremy Markewicz (“Decl. Markewicz”) is attached hereto as Exhibit A.

2

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 9 of 32. PageID #: 614

sterile environment; and keeping the patient clean and bandaged to avoid infection. Id. at ¶ 3. The

HHAs provide in-home patient care under the supervision of a Registered Nurse (“RN”). Id. Each

Maxim office hires its own RNs to perform new hire and annual training for HHAs, with some

HHAs participating in monthly training. Id. at ¶ 4. Each training emphasizes different duties and

results in different amounts of time being spent on different tasks. Id.

Maxim currently has approximately 300 HHA staffing locations nationwide, including 15 in

Plaintiff’s state of Ohio. Id. at ¶ 3. Each staffing location oversees, among other duties: new

patient intake, patient complaints and concerns, HHA orientation and training, assignments and

schedules. Id. Since 2009, Maxim has employed more than 14,000 individuals as HHAs

nationwide – more than 4,000 in Ohio alone.2 Id.

Maxim contracts with hundreds of state and federal government agencies and private

insurers to provide care to patients covered by applicable state or federal programs or insurance

policies. Id. at ¶ 5. Each government program is uniquely funded by federal and state governments,

and defines what types of services may be provided with such funds. The various state and federal

agencies and insurance companies identify patients who qualify for services under their applicable

criteria, and they contract with Maxim to provide those services within the parameters of the

applicable program or policy. For example, in Ohio alone, Maxim serves patients under the

following programs: Medicaid, Passport Program, private insurance, Care Source, workers’

compensation, and the Care Star Waiver Program. Id. Each state has unique programs with their

own guidelines and restrictions regarding the duties that the HHA may perform for qualified

patients. Id. The program (and funding source), not Maxim, determines the duration of time that an

HHA will spend with a patient and the types and nature of services that may be provided. Id.

2 Plaintiff and the declarants were all employed as HHAs. Mot. Exs. C-E. Maxim also employs individuals as Certified
Nursing Assistants (“CNAs”) and State Certified Nursing Assistants (“STNAs”) in part due to varying certification
standards around the country. When combined, the HHAs, CNAs and STNAs total more than 50,000 going back to
2009.

3

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 10 of 32. PageID #: 615

HHAs, including Plaintiff, work in patients’ homes to provide personal care as outlined in

each patient’s unique plan of care. Id. at ¶ 6. The plan of care takes into account the patient’s

specific medical needs as determined by the patient’s physician. Id. Each plan of care is unique to

the patient’s medical condition, abilities and needs, and each plan of care specifies different types of

duties that an HHA must perform in order to properly care for the patient. Id. Because each

provider details the services that it will fund, Maxim has a strictly enforced policy that HHAs are

not to deviate from the plan of care, which is administered and regularly reviewed and updated by

an RN employed by Maxim and sometimes a case manager employed by the provider. Id.; see also

HHA Plan of Care Policy, attached hereto as Ex. B. If a plan of care does not prescribe a specific

duty, then the HHA is not authorized to perform that duty. Id. at ¶ 6. If an HHA is asked to

perform work not detailed in the plan of care, the HHA must notify the branch office. Id. The plan

of care is reviewed and updated at least every 60 days, and HHAs are required to review and

comply with it. Id.

After the plan of care is prepared in accordance with the physician’s report, the patient is

assigned to an HHA based on geographic proximity and availability. Id. at ¶ 7. HHAs can turn

down a patient assignment. Id. HHAs may also supplement their income by agreeing to take “fill-

in” assignments where they substitute for another HHA. Id. These jobs vary depending on need,

and HHAs who perform fill-in work often attend to different patients from week to week. Id.

HHAs provide a variety of different services to their patients, depending on the patients’

needs and plan of care, and the applicable program. Id. at ¶ 8. In caring for a patient, HHAs fill out

daily paperwork wherein the HHA identifies the duties performed in caring for the patient, as well

as the HHA’s time-in, time-out, and total hours for each day. Id. The patient must sign the

paperwork as well. The daily paperwork allows Maxim to compensate HHAs for all hours worked,

verify that the work has been performed to the patient’s satisfaction and bill the applicable program

4

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 11 of 32. PageID #: 616

or provider for the HHAs’ services. Id. Other than general oversight by the RN and sometimes a

case manager, the HHAs are unsupervised. Id. at ¶ 9. The HHA is part of a healthcare team that

consists of physicians, an RN and a case manager. Id. In addition to HHAs, Maxim’s in-home

health care workers also include skilled nurses, therapists, and medical social workers. Id.

III.

STANDARD GOVERNING SECTION 216(b) CERTIFICATION

A.

The Purpose Of Court-Authorized Notice Is To Promote Efficiency Where A
Class Of “Similarly Situated” Employees Exists.

As Plaintiff concedes, the touchstone for conditional certification is judicial efficiency. See

Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989); see generally Arrington v. Mich. Bell

Tel. Co., No. 10-10975, 2011 WL 3319691, at *3 (E.D. Mich. Aug. 1, 2011). Yet the means to

promote this efficiency is not, as Plaintiff suggests, to rubber-stamp conditional certification

motions based on self-serving and conclusory declarations; rather, courts should not exercise their

discretion to authorize notice unless a class of “similarly situated” aggrieved employees exists.

Hoffman-La Roche, 493 U.S. at 170. Otherwise, “it is doubtful that [FLSA] § 216(b) would further

the interests of judicial economy, and it would undoubtedly present a ready opportunity for abuse.”

Holt v. Rite Aid Corp., 333 F. Supp. 2d 1265, 1270 (M.D. Ala. 2004). If the Court must adjudicate

the claims of each HHA individually in one lawsuit, judicial efficiencies will not result. See, e.g.,

Adair v. Wis. Bell, Inc., No. 08-280, 2008 WL 4224360, at *4 (E.D. Wis. Sept. 11, 2008).

B.

Plaintiff Has The Burden Of Making A Factual Showing That The Proposed
Class Is Similarly Situated.

Consistent with judicial efficiency considerations, the burden is on Plaintiff to prove that

other employees are similarly situated. See Harrison v. McDonald’s Corp., 411 F. Supp. 2d 862,

870-71 (S.D. Ohio 2005). Plaintiff’s burden of demonstrating that others are “similarly situated”

must be based on some substance and not mere “unsupported assertions.” See Myers v. Hertz

Corp., 624 F.3d 537, 555 (2d Cir. 2010). Courts in this Circuit are in accord that in the first-stage,

5

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 12 of 32. PageID #: 617

“although [the] standard is lenient, conclusory allegations are insufficient to support conditional

certification.” Arrington, 2011 WL 3319691, at *4; see also Cason v. Vibra Healthcare, No. 10-

10642, 2011 WL 1659381, at *3 (E.D. Mich. May 3, 2011); accord Basco v. Wal-Mart Stores, Inc.,

No. 00-3184, 2004 WL 1497709, at *7 (E.D. La. July 2, 2004) (“While it is true that this ‘lesser’

standard should not preclude certification . . . plaintiffs have failed in their burden of proof to

demonstrate identifiable facts or legal nexus that binds the claims so that hearing the cases together

promotes judicial efficiency.”).

Potential plaintiffs are “similarly situated” for purposes of FLSA Section 216(b) when they

together were “victims of a common policy or plan that violated the law.” See Olivo v. GMAC

Mortg. Corp., 374 F. Supp. 2d 545, 548 (E.D. Mich. 2004) (internal quotations and citations

omitted; emphasis added); Cason, 2011 WL 1659381, at *3 (alleged common policy cited by

plaintiffs – automatic meal break deduction – was not itself an FLSA violation and therefore not

sufficient to warrant conditional certification). “[I]t is clear that plaintiffs are similarly situated

when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct

in conformity with that policy proves a violation as to all the plaintiffs.” O’Brien v. Ed Donnelly

Enters., Inc., 575 F.3d 567, 585 (6th Cir. 2009) (emphasis added), aff’d sub nom. Dellarussiani v.

Ed Donnelly Enters., Inc., 468 F. App’x 479 (6th Cir. 2012). Even at the initial stage of the

certification inquiry, “neither the remedial purposes of the FLSA, nor the interests of judicial

economy, would be advanced if we were to overlook facts which generally suggest that a collective

action is improper.” West v. Border Foods, Inc., No. 05-2525, 2006 WL 1892527, at *7 (D. Minn.

July 10, 2006).

The modest factual showing requirement is “not a mere formality.” Nogueda v. Granite

Masters, Inc., No. 09-374, 2010 WL 1521296, at *2 (N.D. Ind. Apr. 14, 2010); Xavier v. Belfour

USA Grp., Inc., 585 F. Supp. 2d 873, 878 (E.D. La. 2008). Plaintiff’s contention that the Court

6

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 13 of 32. PageID #: 618

should grant conditional certification based on her meager showing is misguided. Before Plaintiff’s

claims can be conditionally certified, there must be some evidence that (1) the putative class

members were subject to a common and allegedly unlawful policy or practice, and (2) that any

claimed FLSA violations resulting from that common policy or practice can be established through

common proof. Plaintiff has failed to present such evidence, and her Motion should be denied.

IV.

CONDITIONAL CERTIFICATION SHOULD BE DENIED

A.

Plaintiff Has No Basis In Fact Or Law To Seek A Broad Class Of “In-Home
Health Care Workers.”

Plaintiff has provided absolutely no basis for seeking to conditionally certify a class of all

in-home health care workers. What little evidence Plaintiff has presented relates solely to the HHA

position; yet, without explanation, Plaintiff seeks to conditionally certify a far broader class of

health care workers that includes a number of other job categories. See, e.g., Mot. Exs. C-H.

Plaintiff and the declarants all worked for Maxim as HHAs, and the scant documents she

relies upon to support her Motion relate to HHAs. See id. Plaintiff’s FLSA claim is that she and

other HHAs nationwide were misclassified as exempt under the companionship services exemption

and improperly denied overtime. See Sec. Am. Compl. ¶¶ 15-26, 33-34. In what can only be

perceived as an attempt to confuse the Court in order to secure a broader class, Plaintiff’s Motion

uses the terms “In-Home Health Care Workers” and “Home Health Aide” interchangeably, settling

upon the broader group as the identified class.3 However, Plaintiff acknowledges that the class of

“in-home health care workers” encompasses at least four different positions (HHAs, skilled nurses,

therapists and medical social workers). See Sec. Am. Compl. ¶ 10. Plaintiff’s attempt to

3 For example, Plaintiff alleges that “Defendant maintains a policy that requires all of its In-Home Health Care Workers
to complete and submit ‘Weekly Notes,’ which state the time they arrived and departed a client’s home, and the tasks
performed under the headings of Bathing, Personal, Mobility, Housekeeping, Nutrition, and Toileting/Elimination.” See
Mot. at 3 (emphasis added) (citing Sec. Am. Compl. ¶ 19; Exhibit G). However, Defendant’s Second Amended
Complaint ¶ 19 actually alleges that “Defendant requires its Home Health Aides to complete and submit a “Weekly
Note” detailing the time they arrived and departed a client’s home; the tasks they performed, under the headings of
Bathing, Personal, Mobility, Housekeeping, Nutrition, and Toileting/Elimination.” Sec. Am. Compl. ¶ 19 (emphasis
added). Plaintiff’s Motion is replete with similar examples. See, e.g., Motion at 9, 10, 15.

7

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 14 of 32. PageID #: 619

conditionally certify such a broad class flies in the face of the Court’s April 26, 2013 Order, in

which the Court denied Plaintiff’s previous Motion for Conditional Certification (Dkt. No. 19) as

moot, noting that (1) plaintiff was an “in-home health aid,” (2) seeking to conditionally certify “[a]ll

hourly in-home health care workers,” yet (3) the complaint defined the class as those “who are or

were employed to provide domestic services.” In response to the Court’s order, Plaintiff selected

the broadest of the three potential classes, despite the fact that Plaintiff is an HHA and all evidence

presented relates to HHAs alone. Therefore, Plaintiff’s Motion should be denied.

B.

Even If Plaintiff’s Proposed Class Were Limited To HHAs, Plaintiff Has Failed
To Demonstrate That She And The Opt-In Plaintiffs Are Similarly Situated To
The Members Of The Proposed Class.

Plaintiff has not met her burden of demonstrating that she is “similarly situated” either to the

five opt-in plaintiffs who have filed consents to join this action or to the thousands of HHAs

working in people’s homes nationwide, let alone to the tens of thousands of In-Home Health Care

Workers employed as skilled nurses, therapists, or medical social workers nationwide. Here,

Plaintiff has offered little more than conclusory, self-serving declarations to show that HHAs are

similarly situated in terms of day-to-day job activities.4 These “cookie-cutter” declarations are

nearly word-for-word identical with few facts. See Mot. Exs. C-E. For example, the named and

opt-in Plaintiffs’ declarations include a bare recitation of certain tasks but say absolutely nothing

about the frequency or duration at which these tasks were performed, whether the tasks were related

or unrelated to the personal care of their assigned patient or patients, or the manner in which these

tasks were performed. Therefore, they are not illustrative of whether HHAs nationwide are

similarly situated. Furthermore, the named and opt-ins’ declarations all make the following legal

conclusion: “I am aware of other similarly situated Maxim employees who performed the same

duties and were also not paid overtime.” See id. Such conclusory, boilerplate legal conclusions

4 Plaintiff also relies on online job postings, but these postings do not constitute a common policy that warrants
conditional certification. See infra § IV(D)(2).

8

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 15 of 32. PageID #: 620

cannot be considered “evidence” by the Court as they are supported by no facts whatsoever.

Armstrong v. Weichert Realtors, No. 05-3120, 2006 WL 1455781, at *1-2 (D.N.J. May 19, 2006);

Gonzales v. Hair Club for Men Ltd., Inc., No. 06-1762-Orl-28JGG, 2007 WL 1079291, at *2-3

(M.D. Fla. Apr. 9, 2007); Songer v. Sillon Res., Inc., 569 F. Supp. 2d 703, 707-08 (N.D. Tex. 2008),

aff’d, 618 F.3d 467 (5th Cir. 2010). Moreover, such conclusions cannot be afforded any weight

because, with rare exception, the HHAs work alone in patients’ homes; they do not work with other

HHAs. These declarants cannot testify about other HHAs’ actions, because each one works in a

different home with a different patient.

Ultimately, Plaintiff provides no evidence, beyond her and the opt-ins’ own speculative

beliefs, suggesting that all HHAs – let alone other In-Home Health Care Workers – nationwide are

required to work in the same manner. See Trinh v. JP Morgan Chase & Co., No. 07-1666, 2008

WL 1860161, at *4 (S.D. Cal. Apr. 22, 2008). This gaping hole in Plaintiff’s evidence alone is a

sufficient basis to deny conditional certification. See id. The overwhelming evidence reveals

significant variation in the types of duties that HHAs perform, the time devoted to those various

duties, and the manner in which they are performed. See Exs. C-R.5 Such evidence is bolstered by

common sense and every day experience involving individuals requiring in-home health care.

1.

Each Patient Has A Unique Plan Of Care And, Therefore, The HHA’s
Duties Vary From Patient To Patient.

The day-to-day activities of each HHA vary depending on the requirements set forth in each


5 Declaration of Terry Benster (“Decl. Benster”) is attached hereto as Exhibit C; Declaration of Reta Bodi (“Decl.
Bodi”) is attached hereto as Exhibit D; Declaration of Yvonne Christian (“Decl. Christian”) is attached hereto as Exhibit
E; Declaration of Diane Deubreau (“Decl. Deubreau”) is attached hereto as Exhibit F; Declaration of Teresa Donnie-
Jones (“Decl. Donnie-Jones”) is attached hereto as Exhibit G; Declaration of Rachel Ford (“Decl. Ford”) is attached
hereto as Exhibit H; Declaration of Amy Frost (“Decl. Frost”) is attached hereto as Exhibit I; Declaration of Kimberlee
Hannum (“Decl. Hannum”) is attached hereto as Exhibit J; Declaration of Albertina Johnson (“Decl. Johnson”) is
attached hereto as Exhibit K; Declaration of Kameelah Jones (“Decl. Jones”) is attached hereto as Exhibit L;
Declaration of Kenitha Kellom (“Decl. Kellom”) is attached hereto as Exhibit M; Declaration of Roxanne Lemaster
(“Decl. Lemaster”) is attached hereto as Exhibit N; Declaration of Chelsea May (“Decl. May”) is attached hereto as
Exhibit O; Declaration of Dayra Nunez (“Decl. Nunez”) is attached hereto as Exhibit P; Declaration of Michael Petrime
(“Decl. Petrime”) is attached hereto as Exhibit Q; Declaration of Haley Wright (“Decl. Wright”) is attached hereto as
Exhibit R.

9

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 16 of 32. PageID #: 621

patient’s plan of care, which is based on the orders of the patient’s medical provider who outlines

the care that is to be provided based on the patient’s specific medical needs. Decl. Benster ¶ 5;

Decl. Christian ¶ 5; Decl. Deubreau ¶ 9; Decl. Jones ¶ 5. The plan of care is reviewed and updated

at least every 60 days, and oftentimes more frequently. Decl. Donnie-Jones ¶ 7; Decl. Deubreau

¶ 9. In some instances, the HHA may make a suggestion to the patient’s RN if the HHA observes

something that the patient may need or would help in caring for the patient. Decl. Donnie-Jones ¶

7; Decl. Frost ¶ 6. How often the plan of care is reviewed by the HHA also varies depending on the

stability of the patient’s condition and the familiarity the HHA has with the patient.6 In addition to

the plan of care, HHAs may also review the “doctor’s report” for updates on the patient’s condition.

Decl. Deubreau ¶ 9. Changes to the plan of care impact the HHA’s duties.7

HHAs are not permitted to deviate from the plan of care. Decl. Bodi ¶ 12; Decl. Hannum

¶ 6. For example, under Maxim’s policies, HHAs are not permitted to perform services for non-

patients. Decl. Bodi ¶ 10; Decl. Donnie-Jones ¶ 16; Decl. Jones ¶¶ 15-16; Decl. Kellom ¶ 17; Decl.

Lemaster ¶¶ 11-12. If a patient or another person asks the HHA to perform duties outside the plan

of care, the HHA is trained to refuse the request and notify Maxim, if necessary, because such a

request would be an improper use of insurance and/or government funds and could lead to a

program or insurer terminating its relationship with Maxim.8


6 Decl. Benster ¶ 5 (“I normally review my patients’ plan of care twice a week to ensure that I am aware of any
changes.”); Decl. Bodi ¶ 6 (“I usually review a plan of care each day or each week, depending on the patient.”); Decl.
Frost ¶ 6 (“every month for the twin boys I care for, and every 2 weeks for the sisters I care for); Decl. Jones ¶ 5 (review
the plan of care on a “regular basis”).
7 Decl. Christian ¶ 6 (“[I]f a patient falls and is injured or has a seizure, the plan of care changes and the patient may be
listed as high risk. The duties I perform and the amount of time I spend on particular duties changes if a patient
becomes high risk. I need to monitor high risk patients even more closely and focus on preventing additional
injuries.”); Decl. Deubreau ¶ 10 (regular patient used to require oxygen, which required HHA to spend more time
bathing patient and getting her dressed; after patient no longer required oxygen these activities took less time; when
patient no longer required oxygen HHA began assisting patient on walks outside).
8 Decl. Jones ¶ 15 (“As I tell all of my patients and their family members, ‘I’m not your maid, I’m your aid!’”); see also
Decl. Bodi ¶ 12; Decl. Christian ¶ 12; Decl. Deubreau ¶ 8; Decl. Donnie-Jones ¶ 16; Decl. Hannum ¶ 6; Decl. Kellom ¶
17; Decl. Lemaster ¶¶ 11-12.

10

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 17 of 32. PageID #: 622

2.

The Time Spent On Various Duties Performed By The HHAs Varies
From Patient To Patient.

The types of duties and time devoted to a particular duty or the manner in which each HHA

performs the duty all differ between patients and even between visits. Decl. Benster ¶¶ 9-10; Decl.

Bodi ¶¶ 9-13; Decl. Christian ¶¶ 9-10; Decl. Donnie-Jones ¶ 13-14; Decl. Frost ¶¶ 11-12; Decl.

Hannum ¶¶ 11-15; Decl. Lemaster ¶¶ 7-10; Decl. May ¶ 8; Decl. Petrime ¶¶ 9-11. For example, the

health and condition of the patient impacts the manner and timing of an HHA’s duties.9

Although the time that HHAs spend working directly with patients to provide care,

maintenance, and fellowship varies, they consistently report spending at least 90% of their time

performing care that is directly related to the patient.10 Due to emergencies, unforeseen events, and

activities taking longer than expected, HHAs are not always able to complete all assigned tasks

within the time period allotted. Decl. Benster ¶ 7. Patients may also accept or decline services and,

therefore, each HHA’s duties may vary from week to week based on an individual patient’s desires.

Decl. Benster ¶ 7. Some HHAs occasionally may work alongside another HHA when two or more

patients live in the same dwelling, which also impacts the HHA’s daily activities. Decl. Frost ¶ 11.


9 Decl. Donne-Jones ¶ 14 (“I had to completely bathe the elderly woman in her 90s, but only had to help the woman in
her 80s get into the tub where she would take over cleaning herself. Also, I had to travel more for the 80-year old
patient to take her to doctor visits and pick up her medications from the pharmacy”); Decl. Jones ¶ 12 (“My female
patients are more independent than my male patient because my male patient is unfortunately bed-ridden due to his
crippling disease. As such, I have to dress and bathe him completely each visit, whereas I need only help the elderly
woman into the shower where she bathes herself, and I only sometimes help my stroke patient bathe and dress.”); Decl.
Christian ¶ 10 (“Caring for [bed bound patient] is very different than patients I have worked with who have Alzheimer’s
disease. The Alzheimer’s patients are generally very capable physically and can clean themselves and maintain their
environment. With these patients my focus is on providing them with positive social interactions and ensuring they do
not leave the home and get lost or injured.”); Decl. Frost ¶ 11 (teenage twin boys with down’s syndrome required HHA
to perform duties such as potty-training and “hand-over-hand” bathing and feeding, which HHA did not have to perform
for her other patients); Decl. Petrime ¶¶ 10-11 (afternoon patient requires less direct assistance than morning patient
because afternoon patient can move around more on his own, compared to morning patient that does not walk well on
his own and has little control over his bodily functions).
10 Decl. Bodi ¶¶ 9, 13 (90% with one of her patients and 90-95% with another patient); Decl. Deubreau ¶ 12 (90%);
Decl. Donnie-Jones ¶ 13 (90%); Decl. Jones ¶ 11 (95%); Decl. Kellom ¶ 11 (98%); Decl. May ¶ 9 (over 90%). This
contrasts with Plaintiff, who alleges that she spent less than 80% of her time on these types of duties (among others that
are not addressed in the declaration). See Sec. Am. Compl. ¶ 15.

11

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 18 of 32. PageID #: 623

3.

The Number Of Patients Assigned To An HHA May Dictate The Types
Of Duties Performed, And How Often They Are Performed.

Each HHA employed by Maxim attends to a different number of patients, which can vary

during the HHA’s employment depending on the patients’ needs, patients’ schedule, HHA’s

availability, and HHA’s experience.11 The number of patients assigned to an HHA also varies

depending on whether the environment that the patient lives in is rural or urban, because rural

locales often require more travel, and there may be fewer patients in close proximity. Decl. Ford ¶

12; Decl. Petrime ¶ 6. Other HHAs care for more than one patient in a residence or care for more

than one patient in a day. Decl. Benster ¶ 8; Decl. Deubreau ¶ 5; Decl. Lemaster ¶ 5.

In addition to tending to their regular patients, HHAs may also fill in for other HHAs or pick

up an additional shift when available. Decl. Benster ¶ 12; Decl. Deubreau ¶ 5; Decl. Donnie-Jones

¶ 9; Decl. Hannum ¶ 3; Decl. Petrime ¶ 5. If an HHA cares exclusively for a single patient, and that

patient is totally dependent due to severe limitations, the HHA’s duties may be more onerous. Decl.

Christian ¶ 10. In contrast, if an HHA cares for numerous patients in a given week that are more

independent and self-sufficient, the HHA’s duties may be less onerous. See id. Thus, HHAs’ job

duties – specifically how much time is devoted to each particular task – can vary greatly.

4.

The HHA’s Duties Vary Depending On The Program Or Policy That
Covers The Patient.

HHAs’ duties differ from patient to patient depending on the state or federal program or

insurance policy that provides for a patient’s care (e.g., Medicaid, Passport Program, private

insurance, Care Source, workers’ compensation, and the Care Star Waiver Program). Decl. Benster

¶ 4; Decl. Christian ¶ 4; Decl. Frost ¶ 4. Each state or federal program or insurance provider

maintains its own guidelines and restrictions regarding the nature of the care to be provided to


11 Decl. Bodi ¶ 7 (4 patients); Decl. Christian ¶ 7 (currently 1 patient, but as many as 5 patients); Decl. Donnie-Jones ¶
10-11 (currently 1 patient, but 2 before one passed away); Decl. Jones ¶ 7 (currently 3 patients, but 1 when she began
employment with Maxim).

12

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 19 of 32. PageID #: 624

patients and the duties the HHA may perform for his or her patients. Decl. Benster ¶ 4; Decl. Frost

¶ 4. These programs and providers will fund only certain types of services, and those services vary

from program to program and provider to provider.12 For example, Plaintiff provided HHA

services to two of her grandparents under the Passport Program. Decl. Markewicz ¶ 5. However,

under other programs, Plaintiff would have been prohibited from providing services to family

members. Id. Guidelines and restrictions of the various programs and providers not only differ

within a state, but also differ from state to state. Id. Therefore, each state has its own unique

programs, policies, guidelines and restrictions that determine the HHAs’ duties. Id.

5.

The HHAs’ Schedules Vary And Impact The Type Of Work That They
Perform.

HHAs’ schedules vary depending on their personal availability and the needs of their

patients. Decl. Benster ¶ 12; Decl. Christian ¶ 7; Decl. Deubreau ¶ 5; Decl. Donnie-Jones ¶ 10;

Decl. Hannum ¶¶ 3, 11; Decl. Petrime ¶ 5. Consequently, the number of hours that each HHA

works on a weekly basis also varies.13 Furthermore, some HHAs’ schedules and hours can vary

from week to week, especially if the HHA provides fill-in services for other HHAs. Decl. Benster ¶

12; Decl. Deaubreau ¶ 6; Decl. Donnie-Jones ¶ 9; Decl. Petrime ¶ 5. This variation in schedules

results not only in a change in hours, but also a change in duties. See supra § IV(B)(4).

6.

The Patient’s Environment Also Impacts The Types Of Duties The
HHAs Perform.

HHAs provide companionship services to patients in their homes; they do not work in a

facility setting. See Decl. Bodi ¶ 9; Decl. Christian ¶¶ 10-11. Therefore, each HHA works in a

different work environment, which impacts each HHA’s day-to-day activities. These various

12 Decl. Benster ¶ 4 (“I cannot drive my Medicaid patients to the store to run errands, but I can run errands for them.
Other programs allow HHAs to drive patients to run their own errands or accompany them to the store.”); Decl. Frost ¶
4 (“I worked in the homes of Maxim patients through the government [Care Star] Waiver program, which sets a cap on
the hours and costs of service available.”).
13 Decl. Christian ¶ 7 (25 hours); Decl. Deubreau ¶ 6 (6 – 15 hours); Decl. Donnie-Jones ¶ 9 (20 – 58 hours); Decl. Ford
¶ 8 (10-12 hours); Decl. Hannum ¶ 3 (28-30 hours); Decl. Jones ¶ 8 (32 hours); Decl. May ¶ 4 (15-30 hours); Decl.
Nunez ¶ 8 (27-30 hours); Decl. Petrime ¶ 7 (45 hours); Decl. Wright ¶ 6 (20 hours every other week).

13

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 20 of 32. PageID #: 625

factors include whether the patient lives in a house or an apartment; the size of the house or

apartment; whether the house or apartment has more than one floor; whether the patient lives alone

or with a family member or members; and whether the patient receives support from friends or

family members outside the home.14

7.

The HHAs’ Training Varies By Location.

Each Maxim office hires RNs to perform new-hire and annual training for HHAs. Decl.

Christian ¶ 3; Decl. Deubreau ¶ 3; Decl. Johnson ¶ 5; Decl. Kellom ¶ 3. Some HHAs also

participate in monthly training. Decl. Christian ¶ 3; Decl. Hannum ¶ 4. Each training session

emphasizes different duties and results in different amounts of time being spent on different tasks

depending on factors such as location, patient population and program or policy.15 While some

HHAs are trained in a group, others are trained individually, and the training is tailored to meet the

HHA’s individualized training needs. Decl. Ford ¶ 5.

As illustrated by the foregoing, the HHAs’ daily activities vary greatly depending on a host

of factors. Ultimately, Plaintiff has not made even a modest factual showing that she is “similarly

situated” to other HHAs, let alone all In-Home Health Care Workers that make up the alleged

putative class. Consequently, this Court should deny Plaintiff’s Motion.

C.

Evaluating The Applicability Of The Companionship Services Exemption To
Each HHA Will Require Highly Individualized Determinations.

As detailed above, Plaintiff brings a misclassification claim, yet she nowhere alleges that all

Maxim’s In-Home Health Care Workers are classified as exempt under the companionship services

14 Decl. Christian ¶ 11 (“With many patients I do not perform any homecare tasks. Most of my patients live with other
people that assist in taking care of them. My current patient lives with her mother who maintains the house and helps
with her physical therapy, feedings, bathing, and other needs.”); Decl. Hannum ¶ 14 (HHA has to assist patient in going
up and down stairs because patient lives in two-story home); Decl. Jones ¶ 6 (“I may not have to cook for a patient on a
particular day if a family member brought him or her a meal.”); Decl. May ¶ 10 (though HHA’s 14-year old patient uses
a wheelchair, “his parents usually pick him up and put him in the wheelchair for me”).
15 Decl. Hannum ¶ 4 (training “focused on critical care I provide to my patients with an emphasis on sanitation, bathing
and first aid administration for universal precautions in the home”); Decl. Kellom ¶ 3 (“My trainers have stressed taking
the time to provide a calming positive influence on patients . . . [Training] made clear that almost all of my time
working should be spent providing direct care and comfort to patients.”).

14

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 21 of 32. PageID #: 626

exemption, nor can she. Indeed, Plaintiff has provided no evidence of any kind regarding Maxim’s

employees except for the HHA position. Therefore, Plaintiff’s Motion should be denied.

Even if Plaintiff was seeking to conditionally certify a class of HHAs nationwide, Plaintiff

would fail because the evaluation of whether all HHAs nationwide are properly classified as exempt

under the FLSA is inherently individualized and not subject to common proof. The companionship

services exemption states:

[The overtime requirements of the FLSA] shall not apply with respect to . . . any
employee employed in domestic service employment to provide companionship
services for individuals who (because of age or infirmity) are unable to care for
themselves (as such terms are defined and delimited by regulations of the Secretary
[of Labor]).

29 U.S.C. § 213(a)(15). Under U.S. Department of Labor regulations, the application of the

companionship services exemption turns on the following:

As used in section 13(a)(15) of the Act, the term companionship services shall mean
those services which provide fellowship, care, and protection for a person who,
because of advanced age or physical or mental infirmity, cannot care for his or her
own needs. Such services may include household work related to the care of the
aged or infirm person such as meal preparation, bed making, washing of clothes, and
other similar services. They may also include the performance of general household
work: Provided, however, that such work is incidental, i.e., does not exceed 20
percent of the total weekly hours worked.

29 C.F.R. § 552.6.

The primary issue is whether Maxim properly classified each HHA as exempt under the

FLSA’s companionship services exemption – an issue that must be determined by individualized

analysis of whether each potential opt-in plaintiff performed general household work unrelated to

the care of the aged or infirmed person more than 20% of the total hours worked in a given week.

See Sec. Am. Compl. ¶¶ 23-26. As such, the question of whether HHAs are “similarly situated”

requires analyzing whether common evidence can show the amount of time spent by HHAs on

specific tasks. See Trinh, 2008 WL 1860161, at *4 (“If the ultimate issue to be determined is

whether each employee was properly classified as exempt under the FLSA, the ‘similarly situated’

15

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 22 of 32. PageID #: 627

inquiry must be analyzed in terms of the nature of each putative plaintiff’s job duties.” (citation

omitted)); Holt, 333 F. Supp. 2d at 1272 (“‘Similarly situated’ inquiry in this case must be analyzed

in terms of the nature of the job duties performed by each putative plaintiff, because the ultimate

issue to be determined is whether each employee was properly classified as exempt.”).

The focus of Plaintiff’s claim (and that of each putative class member) is “the amount and

extent of the general household work that [Plaintiff] performed.” Sec. Am. Compl. ¶ 21. Per the

DOL regulations, this necessarily requires an inquiry into whether the household work was “related

to the care of the aged or infirm person” versus “general household work.” 29 C.F.R. § 552.6.

Notably, neither Plaintiff’s declaration nor those of the opt-ins address this issue. These facts are

central to determining whether the putative class members are similarly situated, yet the

declarations are devoid of these central facts.

Further, Plaintiff fails even to identify the exemption at issue anywhere in her Motion, let

alone discuss how common evidence can be used to satisfy its components. Instead, Plaintiff devotes

a scant portion of her Motion to discussing employment-related documents that she alleges pertain

to all HHAs (not all workers). See Mot. at 10-11. Noticeably absent, however, is an explanation of

how these few documents are material to determining whether each HHA is exempt as a result of

the duties he or she performs on a daily basis, specifically what portion of his or her time is spent

performing household work of one kind versus the other – the key issue in this case.

Instead, Plaintiff argues that any merit-based analysis of whether an FLSA exemption

applies is not a proper subject at the conditional certification stage. See Mot. at 9 n. 5; see also id.

at 14. Maxim, however, is not presently arguing the application of the exemption on the merits.

Rather, Maxim argues that the practical analysis involved in determining whether the

companionship services exemption applies to employees who provide unique health-related services

to patients in their own homes would involve an individualized fact-specific analysis of each

16

Case: 1:12-cv-02600-CAB Doc #: 46 Filed: 06/03/13 23 of 32. PageID #: 628

putative plaintiff’s job. Simply stated, it would be judicially inefficient to proceed on a collective

basis given the highly-individualized inquiries necessitated by the exemption at issue. See Rutledge

v. Claypool Elec., Inc., No. 12–0159, 2013 WL 435058, at *5 (S.D. Ohio Feb. 5, 2013) (denying

conditional certification where “[t]here [was] no evidence that the Plaintiffs would present a single

claim that if resolved for one, would be resolved for all”); Bunyan v. Spectrum Brands, Inc., No. 07-

0089, 2008 WL 2959932, at *9 n.5 (S.D. Ill. July 31, 2008) (“The court states no opinion as to

whether plaintiffs are actually exempt employees under the FLSA. Rather, the analysis here simply

indicates that conditional certification would be inefficient because the court will have to undertake

an analysis of each employee’s work responsibilities in order to decide the issue.”); see also Trinh,

2008 WL 1860161, at *5 (noting “[T]he Court is not opining whether Plaintiffs . . . have

meritorious claims to overtime compensation; rather, the Court is examining the legal backdrop and

type of evidence required to prove whether any employee is exempt or not.”).

Plaintiff does not refute that the applicability of the companionship services exemption

necessitates highly individualized determinations, but rather, argues that such facts should not be

considered at the conditional certification stage. See Mot. at 14. To ignore these undisputable facts

at this stage is folly. Maxim should not be put to the burden of having notice sent to potentially tens

of thousands of employees nation