Law Prof: Home health FLSA class likely faces decertification battle

By Dee Thompson | Jun 23, 2017

A federal district court has granted conditional certification to a class of home health care nurses who allege workers in three states were not compensated for working off the clock.

ST. LOUIS – Despite winning a conditional class certification in federal court last month, home health care workers alleging "off-the-clock" wage abuses likely face a challenge to deceritify, according to one local law professor.

Nurse Christina Mayberry and others have sued SSM Health Businesses, doing business as SSM Home Care, and/or SSM Health At Home in the U.S. District Court for the Eastern District of Missouri, Eastern District. They sued under the Fair Labor Standards Act and Missouri Minimum Wage Law to recover unpaid wages and unpaid overtime. 

The workers clear their first hurdle May 30, after the judge in the case certified the multi-state class action in a conditional ruling. The certification, however, is only the start of a long road for the plaintiffs, according to Professor Rafeal Gely, a James E. Campbell Missouri Endowed Professor of Law and director o fthe Center for the Study of Dispute Resolution at the University of Missouri

Gely told the St. Louis Record that a studies indicates plaintiffs are more likely to prevail in the final stages of employment litigation. 

“It describes a study by an employer-side law firm which found that plaintiffs tend to be successful at the first stage of FLSA collective actions in about 75 percent of cases. In the second stage, which occurs after discovery, plaintiffs were successful in about 60 percent of the cases,” says Gely. 

In the Mayberry case, the lawsuit is still in the early stages of getting potential class members to opt in. Gely explained that this early, it’s hard to predict the outcome of Mayberry. He noted that at the second stage defendants may move to decertify the class. 

“If the court finds in favor of the plaintiffs at that second stage, then the court considers the merits of the claim. Thus, it is hard to say what the ultimate outcome will be, given that there are still procedural issues to decide,” he said.

Included in the suit were other health care workers employed by SSM Health in Missouri, Illinois and Oklahoma that allegedly were “subjected to a policy or practice that required them to work ‘off the clock,’ without pay,” according to the court’s Memorandum and Order. 

According to a 2015 Seyfarth Shaw article, “Over the past decade, health care employers have faced a wave of wage and hour lawsuits challenging common industry pay practices for nurses and other workers. Many healthcare providers continue to defend against a variety of overtime suits.”

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