Dept. of Labor: Underpaid Workers in Assisted Living Facilities

In 2015, the US Department of Labor – Wage and Hour Division set forth an initiative to evaluate the assisted living facility and home care industry.  Nearly 100 investigations were conducted by the Tampa District office, which uncovered more than $400,000.00 in unpaid or underpaid wages to more than 350 employees of assisted living facilities.

The investigations also found that assisted living facilities, as an industry, used complicated working arrangements such as sub-contracting and third party management companies to blur the lines between employer and employee.  These types of employment relationships led to increased risk of workers being improperly compensated for the number of hours worked, overtime, and minimum wage.  DoL investigators found numerous infractions, including improper record keeping, failure to pay employees for work conducted at home or away from office and failure to compensate employees for travel time and time spent “on-call”.

The Department of Labor initiative also found that many employees, supervisors and management were unaware of certain regulations and prompted the agency to conduct outreach events to assist in law compliance and provide information on employer/employee rights and responsibilities.

Florida has a massive senior population, with nearly 4 million residents over the age of 65.  Hundreds of assisted living facilities are spread across the state, employing thousands of employees.  With such a large employment force in the Gainesville, Ocala and Lake City area, it is likely that many employees are improperly being paid and not even aware.  Employees that provide in-home care are often misclassified as exempt employees or independent contractors.  Many more are underpaid as hourly workers, being forced to work “off the clock” or not being compensated for employment related travel or “on call” hours.

The attorneys of Massey & Duffy, PLLC have aggressively represented hundreds of employees in Alachua County, Marion County, Lake County, Columbia County and Levy County.  Our experience extends to all forms of Employment & Labor Law, including the Fair Labor & Standards Act (FLSA), Family Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA).  If you are an employee at an assisted living facility and suspect you are being underpaid as a result of your employment, please call our office at (352) 505-8900 to schedule a FREE CONSULTATION.

Does “On-Call” Mean “On the Clock”? Reviewing “On-Call” compliance with FLSA

Many professionals, such as doctors, firemen, nurses, social workers, US military and even attorneys must remain glued to their cellphones in case they are needed on a moment’s notice.  This is usually just an accepted part of the job and a reason why they are paid comfortable salaries.  However, often there are hourly employees who are required to remain “on-call” for their employer.  They can be nursing assistants, drivers and security personnel.  This practice is used to reduce burdensome labor costs while still having employees available in case of an emergency or sudden increase in business.

Compensation for this practice varies from industry to industry.  The federal Fair Labor & Standards Act (FLSA) 29 C.F.R. §785.17 has some pretty clear guidance on what can be considered fair practice in regards to on-call time:

  • Working On-Call: An employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call”.  This applies to waiting in the break room, parking lot, or office or remaining in the general vicinity without expressed freedom to move or travel a reasonable distance at will.
  • Not Working On Call: An employee who is not required to remain to the employer’s property or nearby, but is required to be reachable either at home or within a reasonable distance if needed.
  • On Duty: An employee is considered on duty when they are at work, even if they are not currently engaged in work-related activities, but unable to use their time effectively for their own benefit. Examples would be a receptionist reading a book or magazine while waiting for a client, or a bus driver listening to the radio while waiting for passengers to load.  If waiting is essential to the job duties performed, it is considered on-duty time and employee must be compensated.
  • Off-Duty: defined as time where a employee is relieved of duty and may utilize his/her time effectively for their own personal use.  Employer has no control over the activities of the employee and the employee may leave the employers premises to conduct personal business during the duration.  Employee must be told in advance of this freedom and cannot be restricted other than duration.  These include scheduled meal breaks of a specified time or longer periods of absence for medical appointments, etc.  This time does not have to be paid.

The above definitions apply only to non-exempt hourly employees.  However, if an employee’s working on-call time is significant enough to require substantial overtime pay that is not commensurate with their salary, exempt employees may have a claim under FLSA regulations.

If you have not been properly compensated for overtime, on-duty hours or time spent working while “on-call”, than you may have a claim for damages under the Fair Labor & Standards Act.  The attorneys of Massey & Duffy are experienced in Unpaid Wage and Overtime disputes and have successfully represented employees in hundreds of FLSA claims.  Call (352) 505-8900 today for a FREE CONSULTATION.

Changes to the FLSA and What it Means to You

Federal & State Minimum Wage

Under Federal law, employers are required provide a minimum wage of $7.25 per hour for employees.  In states, with a higher minimum wage, the higher wage prevails.  The State of Florida ties minimum wage increases to the annual growth of the Consumer Price Index.  The current minimum wage for Florida is $8.05.  There is currently a Florida Senate Bill in committee, which would raise the Florida minimum wage to $15 per hour.

Federal Overtime Laws

Covered non-exempt employees are entitled to 150% of their regular wages for every hour they work beyond 40 hours in a standard work week.  These hours cannot be adjusted if you are paid bi-weekly, but the days of your workweek may vary by employer (i.e. Sunday – Saturday; Monday – Sunday; Wednesday-Tuesday).  There is no limit to the amount of hours an employee may work above 40 hours, so long as they are paid accordingly and are over the age of 16 years old.

The definition of “exempt employees” has evolved over the years due to court rulings.  Just because your employer uses the term “exempt” or “independent contractor” does not necessarily mean you are not covered by overtime requirements.  Salaried employees, tipped employees, and even commissioned sales representatives may still have claim in federal court for unpaid wages.  Employees who receive a 1099 IRS Form may also be covered by FLSA laws.

Hours Worked

FLSA requires that employees be compensated for all time that they “suffer or permitted to work”.  This definition may vary upon circumstance.  For instance, if an employee is engaged by their employer and caused to wait without production, employers may still be required to compensate them at their hourly rate.  An illustration of this is an employee who must drive or ride in their employers work vehicle to a remote cite, this employee is due compensation under FLSA.  However, an employee who commutes 30 minutes to work and waits outside their employment location reading a newspaper, is not due compensation.  This is just one example of the many nuisances within the regulation.  Other examples of murky FLSA areas are “on-call” times, time spent in security checks, rest & meal times, travel time (non-commute) and time spent correcting errors or additional services.

A recent Federal Court Ruling in California held that Apple retailers had the right to have employees wait in line for bag checks without pay to counter internal theft from employees.  This was a landmark case and may open up similar practices for employers across the country.

Record Maintenance

Employers are required to post FLSA rules and posters in their offices and service locations.  These posters must be in conspicuous locations and may be ordered, free of charge from the US Department of Labor.

Employers are also requires to keep detailed records of non-exempt employees.  This records must include, name, Date of Birth, Social Security number, address, along with detailed payroll records for hours worked, wages, and payment dates.  These records must be kept for up to three years and available for inspection upon request from a Dept. of Labor Wage and Hour Division representative.

Child Labor

Restrictions and protection of the use of child labor were the primary goal when the Fair Labor & Standards Act of 1938 was passed.  Children during the industrial boom of the early 20th Century were often abused, neglected and suffered horrible working conditions.  Since the passage of the FLSA, the federal government has taken the lead in ensuring working conditions for minors are safe.  Many states have their own regulations regarding employment of children and employers and employees should carefully read these laws to ensure compliance.

 

Employment and Labor Attorneys Serving North Florida

The constant changes in employment and labor law may be difficult for employers and employees to keep up with.  Every year, employers spend billions of dollars in legal fees to avoid litigation and navigate their way through federal and state labor laws.  The attorneys of Massey & Duffy, PLLC have over 30 years combined experience dealing with employment law and assisting clients recover unpaid wages and overtime.  Call (352) 505-8900 today to schedule your FREE CONSULTATION!

Partial Summary Judgment for Plaintiff in Overtime Case

A Federal Court has granted Plaintiff’s Motion for Partial Summary Judgment against Family Life Care, Inc. (also known as “FLC”). The ruling holds that Plaintiff, Ms. Hughes was an employee under the Fair Labor Standards Act (FLSA) and thus entitled to overtime compesnation to the extent she worked it (FLC admitted enterprise coverage). Here is a copy of the Order entered against Defendant, Family Life Care, Inc.: Hughes Summary Judgment Order. These are the arguments Plaintiff made to the Court in obtaining this Order (i.e. the below is a copy of the Plaintiff’s Motion for Partial Summary Judgment filed with the Court):

Plaintiff was a long term employee of Defendant, having worked from February 23, 2004 to February 5, 2005 and then again from July 13, 2007 to November 17, 2014. See Defendant’s Answers to Plaintiff’s Second Interrogatory (attached as Exhibit A). Her work included housekeeping, personal care and companionship for customers of Defendant in their home. Id., Answer to Interrogatories #4 and 5; See also Plaintiff’s Declaration at Paragraph 3 (attached as Exhibit B). Housework constituted more than 20 percent of her work. Id.

1. Control

Defendant set rules and guidelines governing Plaintiffs employment, including but not limited to her hours of work, rate of pay, and paid time off. See Plaintiff’s Declaration, Exhibit B, at Paragraph 3.  Defendant provided Plaintiff with a “Contract Worker Handbook” listing its company policies and procedures to which Plaintiff had to follow to avoid termination (attached as Exhibit C). Id.

The Handbook, at pages 14-15 (under “Other Important Information”) requires Plaintiff to adhere to the following:

  • Meals may not be taken at the client’s expense
  • Staff/contract workers should not have company at work (children, spouses, etc.)
  • Staff/contract workers may not use a client’s appliances for persona use (washer, dryer, etc.)
  • Staff may NOT borrow things from the client (money, etc.)
  • Staff/contract workers may not purchase alcohol or tobacco products for clients.
  • Important notices or policy and procedure changes will be transmitted to staff/contract workers by letters, bulletin boards, meetings or revised handbook inserts.
  • Staff/contract workers will be monitored by scheduled and unscheduled supervisory visits per County, State & Federal rule in which the results of the vis shall be documented in the personnel file; as well as the client charge, if applicable.
  • Common courtesy would dictate that the contract worker would call into their Regional Office at the beginning of each day they are schedule to work, to ensure that all clients receive the services requested.

Id. Moreover, if Plaintiff wished to take a day off, she was required to request permission from Defendant. See Plaintiff’s Declaration, Exhibit B, at Paragraph 4.

Defendant’s control over its employees is also demonstrated by its employment application available on its website (application attached hereto as Exhibit D).1 The application provides for a “probationary period” for persons applying as a “contract worker”– stating that: There will be an employment probationary period of ninety (90) days with our option to increase to 180 days if deemed necessary during the probationary period. My employment relationship with Family Life Care is terminable at will for any reason by either party.” Id. at page 3.

Defendant’s website also “guarantees” its clients satisfaction.2 It states that if the client is unsatisfied, a “back-up” (quotes in original) will take the Plaintiff’s place:

Your satisfaction is guaranteed and our main goal is providing quality services to ensure you remaining independent in your home for as long as possible. If for any reason a care giver must miss a scheduled time you will be notified that a qualified “back-up” caregiver will be there.

See website excerpt attached Exhibit E. This guarantee and offer to replace Defendant’s employees is placed under the website’s F.A.Q.: “What if I am not satisfied with the care giver or they can’t make it?” Id.

Defendant has a progressive disciplinary system applicable to Plaintiff. It has 3 levels of “offense descriptions” that can lead to “termination”. See Exhibit F. Plaintiff was forced to sign onto this system and was subject to it. See Exhibit G.

Additional control was exerted over Plaintiff via “reminders.” Attached hereto as Exhibit H is one such reminder, ordering Plaintiff to do the following:

  1. No children at your job
  1. No one can drop you off at the client’s home
  1. No using client’s phone
  1. No rescheduling visits without notifying office
  1. No discussing client’s work with another
  1. No telling clients your problems (or discussing pay issues)
  1. No accepting gifts or money
  1. No transporting clients, and
  1. No calling clients after contract pulled

Plaintiff was forced to sign these “reminders”. Id.

Defendant provided Plaintiff with a “Homemaking” sheet; something that goes so far as to order Plaintiff “not to use (BLEACH).” See Exhibit K. These homemaking duties were a significant part of her job – constituting more than 20 percent of Plaintiff’s work. See Plaintiff’s Declaration, Exhibit B, at Paragraph 3. See also Exhibit A, Defendant’s answer to Plaintiff’s Thirteenth Interrogatory that “Plaintiff would have knowledge of her own actions.”)

The Handbook also demonstrates that the Plaintiff is not under control of her own schedule. See Exhibit C. At page 11, it states that “The client’s schedule are made to fit the client needs or requests; therefore, changes to the client’s schedule to fit the contract workers’ needs are not acceptable.” Id. These schedules were always set by Defendant. See Plaintiff’s Declaration, Exhibit B, at Paragraph 3.

Finally, Defendant forced Plaintiff to sign a non-compete agreement that actually threatens “criminal charges” if Plaintiff failed to comply. Attached hereto as Exhibit I is one of these Non-Compete Agreements (another is attached as Exhibit J). Exhibit I states, in the last paragraph, that “Non-compliance with the above statement will result in immediate termination of my contract with FLC and with any clients that have been referred or assigned to me through FLC. Further, criminal charges and fees for damages can be brought against me should I fail to comply.”

2. Opportunity for Profit/Loss

Plaintiff worked a full time job for Defendant and was not in business for herself. See Plaintiff’s Declaration, Exhibit B, at Paragraph 5. She was paid hourly, and submitted her hourly time-sheets to Defendant. Id., see also Defendant’s Interrogatory Answers, Exhibit A, to questions 6, 7 and 22. Plaintiff was not incorporated or otherwise in business for herself during the time that she performed work for Defendant. See Plaintiff’s Declaration, Exhibit B, at Paragraph 5.

Plaintiff was economically dependent upon Defendant for her livelihood from at least on or about August 2007 until her termination in 2014. Id. She earned all of her income from Defendant between at least August 2007 and November 2014. Id. During the time, Plaintiff regularly worked more than forty (40) hours during one or more work weeks and submitted time cards regarding those hours to Defendant. Id.

The opportunity for profit and loss by Plaintiff is actually “strictly forbidden” by Defendant’s policies and procedures. See Exhibit C, at Page 13. The Handbook at page 13, under “Tips and Gifts” states as follows:

The accepting of money or gifts by individual workers from clients whom FLC does business is strictly forbidden. Anyone wishing to give a gift or make a donation should be referred to FLC administration.

Id. (e.s.).

Finally, again, Defendant’s non-compete agreement with Plaintiff bears repeating. See Exhibit I. It states, in the last paragraph, that Plaintiff “guarantee[s] that [she] will not compete with [Defendant} for any client’s referred or assigned to me by the agency.” As if one was not enough, Defendant had Plaintiff sign another non-compete (attached hereto as Exhibit J) expanding Plaintiff’s obligations and prohibiting her from “directly or indirectly engaging in [Defendant’s] Business, either as an owner, operator, manager, [etc.]. . .” – during Plaintiff’s employment and for 2 years after her separation from Defendant. Id. at Paragraph 3(b). The same language prohibits any “competition with or against Family Life.” Id. Moreover, Defendant’s inclusion of paragraph 9 of the non-compete attached as Exhibit J that the non-compete does not change Plaintiff’s status as an independent contractor is actually proof that Defendant knew full well that providing its employees with a non-compete would in fact legally alter the control/opportunity for profit elements of the FLSA.3 See id.

3. Equipment and Materials

The Handbook also addresses Plaintiffs’ “Identification Badge”. See Exhibit C, at page 13. It states that:

Contract workers are issued an ID that should be kept in their possession at all times. Contract workers are required to wear their badges at all times that they are preforming FLC duties. The badge must be worn to identify the worker to clients and other FLC staff/contractors. At the end of the contractual relationship with FLC, this badge must be returned to the FLS office before the final paycheck is issued.

Id. This ID advertises Defendant’s name and business. See Plaintiff’s Declaration, Exhibit B, at Paragraph 4. Moreover, as per the Handbook’s language cited above, wearing it was required. See Exhibit C at page 13.

4. Special Skill

According to Defendant’s sworn interrogatory answers, and although Plaintiff had a CNA’s license, Plaintiff’s job duties were “housekeeping, personal care and companionship.” See Defendant’s Answers to Plaintiff’s Second Interrogatory (attached as Exhibit A). To the extent special skill or training was required, Defendant supplied it; pursuant to its website, the “Benefits of Working with Family Life Care” are “training programs”.4

5. Permanency and Duration

Plaintiff was economically dependent upon Defendant for her livelihood from at least August 2007 until her termination in 2014. See Defendant’s Answers to Plaintiff’s Second Interrogatory (attached as Exhibit A); Plaintiff’s Declaration Paragraph 5. Her hours often exceeded 40 per week. See Defendant’s Answers to Plaintiff’s Second Interrogatory (attached as Exhibit A).

6. Integral Part of Defendant’s Business

Defendant’s fifth interrogatory answer claims that “Defendant is in the business of home health care. The Live Oak office is not a nurse’s registry.” See Defendant’s Answers to Plaintiff’s Fifth Interrogatory (attached as Exhibit A). Defendant was one of those integral employees whom worked in Defendant’s client’s homes. See Plaintiff’s Declaration at Paragraph 2.

MEMORANDUM OF LAW AND ANALYSIS

Under the FLSA, an “employee” is “any individual employed by an employer,” 29 U.S.C. § 203(e)(1), an “employer” “includes any person acting directly or indirectly in the interest of an employer in relation to an employee,” 29 U.S.C. § 203(d), and the term “employ” “includes to suffer or permit to work,” 29 U.S.C. § 203(g). It is not relevant whether one party and/or the other classified the relationship as that of an independent contractor.5 Instead, in determining whether someone is “employed” as per the FLSA, courts apply the “economic realities” test.

To distinguish independent contractors from employees, courts look to the “economic reality” of their working relationship. Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1313 (11th Cir. 2013). The inquiry is whether the alleged employee has “economic dependence” on his or her alleged employer. Id. at 1312. To guide this inquiry, the Eleventh Circuit provides six factors:

(1) The nature and degree of the alleged employer’s control as to the manner in which the work is to be performed;

(2) The alleged employee’s opportunity for profit or loss depending on his managerial skill;

(3) The alleged employee’s investment in equipment or materials required for his task, or his employment of workers;

(4) Whether the service rendered requires a special skill;

(5) The degree of permanency and duration of the working relationship;

(6) The extent to which the service rendered is an integral part of the alleged employer’s business.

Id. 

The parties’ subjective beliefs and expectations, as well as the labels they place on their relationship, are completely immaterial. See id.  As stated by the Court in Scantland:

This inquiry is not governed by the “label” put on the relationship by the parties or the contract controlling that relationship, but rather focuses on whether “the work done, in its essence, follows the usual path of an employee.” Rutherford Food, 331 U.S. at 729, 67 S.Ct. at 1476. “[P]utting on an `independent contractor’ label does not take the worker from the protection of the Act.” Id.; see also Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1312 (5th Cir.1976) (“It is not significant how one `could have’ acted under the contract terms. The controlling economic realities are reflected by the way one actually acts.”)

Id. at 1311. See also those cases cited in footnote 5, supra.

1. CONTROL

To determine if an individual is an independent contractor or an employee, courts first consider “the nature and degree of the alleged employer’s control as to the manner in which the work is to be performed.” Scantland, 721 F.3d at 1312. In this case, as described in the facts supra, there is no question that Defendant controlled Plaintiff and her work. These facts, summarized, include:

  • Strict adherence to the “Contract Worker Handbook” (Exhibit C), or termination, including numerous directives about how Plaintiff’s work must be performed (at pages 14-15),
  • Plaintiff had to ask permission to take a day off,
  • Defendant’s employment process contains a “probationary period,”
  • Defendant “guarantees” its clients a “back-up” employee should the client not be happy with Plaintiff,
  • Defendant has a progressive disciplinary system,
  • In addition to the Handbook, Defendant had other “reminders” including numerous additional requirements as to how Plaintiff must perform her work,
  • Defendant made Plaintiff’s schedule, which the Handbook makes clear are “made to fie the client” and changes to fit the “contract workers’ s needs are not acceptable,”
  • Defendant’s control of Plaintiff’s work even extended to the prohibition that she use Bleach (as per Exhibit K), and
  • Defendant had 2 non-compete agreements with Plaintiff – prohibiting Plaintiff from “competition with or against” Defendant during her employ and for another 2 years thereafter. Thus, Defendant not only controlled Plaintiff while Plaintiff worked for it, but also after Plaintiff left Defendant’s employ.

2. OPPORTUNITY FOR PROFIT OR LOSS

Second, courts consider the “alleged employee’s opportunity for profit or loss depending on his managerial skill.” Scantland, 721 F.3d at 1312. “Where the worker is paid by the hour, it typically suggests an employment relationship; where the worker is paid by the job, it points toward independent contractor.” Ruiz v. Affinity Logistics Corp., 887 F. Supp. 2d 1034, 1048 (S.D. Cal. 2012).

In this case, as described in the facts supra, there is no question that Plaintiff had no opportunity for profit or loss and that she was paid by the hour. These facts, summarized, include:

  • Plaintiff was not incorporated for herself and did not work for anyone other than Defendant, full time,
  • Plaintiff was economically dependent on Defendant for at least 7 straight years,
  • Defendant’s Handbook at page 13 “strictly forbids” Plaintiff from “accepting money” from clients – instead requiring those persons wishing to give extra to Plaintiff to be “referred to [Defendant’s] administration,” and
  • Defendant had 2 non-compete agreements with Plaintiff – prohibiting Plaintiff from “competition with or against” Defendant. Defendant not only precluded Plaintiff from opportunities while she worked for it, but also for 2 years after her separation.

3. INVESTMENT IN EQUIPMENT OR MATERIALS

Third, courts consider “the alleged employee’s investment in equipment or materials required for his task, or his employment of workers.” Scantland, 721 F.3d at 1312. An independent contractor risks his own independent capital, while an employee has his expenses provided. See Usery v. Pilgrim Equipment Co., 527 F.2d 1308, 1313-14 (5th Cir. 1976) (discussing “risk capital”). The focus, thus, is on equipment or materials that constitute significant enough capital to establish a financial “risk capital” to the alleged contractor. See id. Thus, minor purchases such as cleaning supplies are irrelevant. Robles v. RFJD Holding Co. Inc.,Case No. 11-62069-CIV-ROSENBAUM/SELTZER (Dist. Court, SD Florida 2013) (“Beyond the occasional purchase of negligible cleaning supplies and tools, which is insufficient to present a risk of loss, Plaintiffs invested practically nothing but their labor in their cleaning work.”)

In this case, as described in the facts supra, there is no question that Plaintiff was not supplying any signification amount of equipment or materials that would constitute investment “risk” to her; and certainly no capital. Moreover, Defendant made sure the most important material – the work IDs – it supplied, complete with Defendant’s business advertised on it. See Plaintiff’s Declaration, Exhibit B, at Paragraph 4 and the Handbook, Exhibit C, at page 13. Wearing the IDs was required. Id.

4. SPECIAL SKILL

Fourth, courts consider “whether the service rendered requires a special skill.” Scantland, 721 F.3d at 1312. Here, more than 20% of Plaintiff’s work was homemaking. See Plaintiff’s Declaration, at Paragraph 3 attached as Exhibit B; See also Defendant’s “Homemaking” list, attached as Exhibit K. Homemaking is not a special skill; nor is companionship. See Exhibit A, Defendant’s Answer to Interrogatories #4 and 5;

5. PERMANENCY AND DURATION

Fifth, courts consider “the degree of permanency and duration of the working relationship.” Scantland, 721 F.3d at 1312. “Where a worker is employed for a lengthy period of time, the relationship with the employer looks more like an employer-employee relationship.” Harris v. Vector Mktg. Corp., 656 F. Supp. 2d 1128, 1140 (N.D. Cal. 2009). In this case, as described in the facts supra, there is no question that Plaintiff was a long term employee with a long employment duration. She worked full time for Defendant for 7 straight years, often working over 40 hours a week. See Defendant’s Answers to Plaintiff’s Second Interrogatory (attached as Exhibit A); Plaintiff’s Declaration, Exhibit B, Paragraph 5.

6. INTEGRAL PART OF ALLEGED EMPLOYER’S BUSINESS

Sixth, courts consider “the extent to which the service rendered is an integral part of the alleged employer’s business.” Scantland, 721 F.3d at 1312. Defendant’s business is “the business of home health care. The Live Oak office is not a nurse’s registry.” See Defendant’s Answers to Plaintiff’s Fifth Interrogatory (attached as Exhibit A). A home health care business cannot survive without people servicing client’s at their home. Plaintiff, as an in home care provider, was thus indisputably an integral part of a “home health care” business

DEFENDANT’S “SET-OFF” DEFENSE

Defendant’s fourth affirmative defense claims a “setoff.” However, Defendant has no proof of any such claim. In fact, during the pendency of this litigation, Defendant paid Plaintiff some of these “disputed” funds it wrongfully withheld from her pay. See Exhibit L. Even if Defendant had a valid claim, it would not work to setoff Plaintiff’s entitlement to overtime in this action. See Brennan v. Heard, 491 F.2d 1, 3 (5th Cir. 1974), overruled on other grounds, McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988). This is especially true in this case, since Defendant’s claimed setoff would resulting Plaintiff not being paid anything for those disputed periods of time and, thus, dropping her wages below minimum wage. See Perez v. South Florida Landscape, Inc., Case No. 13-80620-CIV-MARRA/MATTHEWMAN (Dist. Court, SD Florida 2014) (“If Defendants were to prevail . . . the FLSA count would be reduced to below the minimum wage. Such a result would run afoul of Brennan. For that reason, Defendants should instead file a separate action in the proper forum to pursue the claims alleged in the counterclaims.”).

JURISDICTION AND COVERAGE

As a final note, Defendant admitted this Court has jurisdiction over this matter in its response to paragraph 6 of the Complaint. Moreover, Congress amended the FLSA in 1974 to extend coverage to all domestic service workers, including those employed by private households or companies too small to be covered 4 by the Act. See Fair Labor Standards Amendments of 1974, Pub. L. 93-259 § 7, 88 Stat. 55, 62 (1974); 29 U.S.C. 202(a), 206(f), 207(l). Domestic service workers include, for example, employees employed as cooks, housekeepers, governesses, janitors, laundresses, and caretakers. See Senate Report No. 93-690, 93rd Cong., 2d Sess. p. 20 (1974).6 Domestic service workers also include “the terms used by commenters, such as home health aides, personal care aides, attendants, direct support professionals, and family caregivers.”7 Thus, Plaintiff was protected by the FLSA’s overtime provisions given the nature of her work for Defendant. See id.; See also Exhibit A, Defendant’s Answer to Interrogatories #4 and 5 (Plaintiff’s work included “housekeeping, personal care and companionship” for Defendant’s “home health care” business).8

CONCLUSION

Applying the above factors results in the sole conclusion that Plaintiff was an employee of Defendant as that term is defined by the FLSA. As such, the Plaintiff is due overtime for all hours worked over 40 in a workweek. As for the amount of those damages, presuming this Motion is granted, Plaintiff and Defendant’s counsel should be able to agree on the amount of overtime due Plaintiff – with possible briefing over liquidated damages, whether Plaintiff is entitled to two or three years of pay, and the amount of attorneys’ fees and costs at issue. As such, Plaintiff requests partial summary judgment in her favor as to liability, with jurisdiction being reserved for further proceedings regrinding the amount of damages, whether the applicable limitations period is two or three years, possible injunctive relief, liquidated damages, attorney’s fees and costs9.

Dated: May 11, 2015

/s/ Michael Massey

Michael Massey

Fla. Bar No. 153680

Massey & Duffy, P LLC

855 E. University Ave.

Gainesville, FL 32601

352-505-8900

3 Clearly, Defendant cannot change the FLSA’s application (i.e. the application of Federal law) by agreement with the Plaintiff or an attempted contractual disclaimer. See cases cited infra at footnote 5; see also Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1311 (11th Cir. 2013) (“inquiry is not governed by the ‘label’ put on the relationship”). Similarly, the application of any state law cited by Defendant would not alter the FLSA’s application either. See Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996) (citing Jones, 430 U.S. at 525, 97 S.Ct. 1305) (regarding “field preemption” and “conflict preemption”), a discussion likely beyond the scope of this motion and definitely beyond the scope of the Defendant’s affirmative defenses as pled.

5 See Chapman v. A.S.U.I. Healthcare and Development Center, 562 Fed. Appx. 182, 184-85 (5th Cir. 2014), cert. denied 134 S.Ct. 2733 (2014) (Affirming district court’s determination that individuals were employees, rather than independent contractors, in spite of contract stating independent contractor status, because “[neither a defendant’s subjective belief about employment status nor the existence of a contract designating that status is dispositive. Rather, courts look to multiple factors to assess the “economic reality” of whether the plaintiff is so dependent on the alleged employer that she is an employee or is so independent that the plaintiff essentially is in business for herself); Donovan v. The New Floridian Hotel, Inc., 676 F.2d 468, 471 (11th Cir. 1982) (That a business “may not have had the intention to create an employment relationship is irrelevant.”); Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1492-93 (11th Cir. 1993), (The Eleventh Circuit concluded that the district court had relied too heavily on the parties’ contract, which described the plaintiff (in an ERISA matter) as an independent contractor, in determining that the plaintiff was not an employee). See also Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1311 (11th Cir. 2013), discussed infra.

6 See also DOL’s “Application of the Fair Labor Standards Act to Domestic Service,” dated 10/1/2013 available online at http://webapps.dol.gov/federalregister/HtmlDisplay.aspx?DocId=27104&AgencyId=14 (“Congress amended the FLSA in 1974 to extend coverage to all domestic service workers, including those employed by private households or companies too small to be covered by the Act . . . Domestic service workers include, for example, employees employed as cooks, butlers, valets, maids, housekeepers, governesses, janitors, laundresses, caretakers, handymen, gardeners, and family chauffeurs . . . Thus, workers performing domestic tasks, such as cooking, cleaning, doing laundry, driving, and general housekeeping, and employed in private homes, either by households or by third party employers, are protected by the basic minimum wage and overtime protections of the FLSA.”).

7 See the Terminology” Section of DOL’s “Application of the Fair Labor Standards Act to Domestic Service,” dated 10/1/2013 available online at http://webapps.dol.gov/federalregister/HtmlDisplay.aspx?DocId=27104&AgencyId=14.

8 Thus, it is irrelevant that Defendant denied Paragraph 7 of the Complaint (claiming that “Defendant was an enterprise covered by the FLSA”). Moreover, Plaintiff relies on her allegation that she was an “employee” of Defendant, misclassified as an independent contractor, and that Defendant Defendant failed to comply with 29 U.S.C. §§ 201- 209 in paragraphs three and eight of the Complaint. See Ceant v. Aventura Limousine & Transp. Serv., Inc., 874 F. Supp. 2d 1373, 1377 (S.D. Fla. 2012) (“To be clear, the Court rejects Defendants’ call for super detailed factual allegations as to every facet of FLSA coverage.”).

9 Including continuing jurisdiction to resolve any of plaintiff’s motions to compel, necessary at a minimum in relation to Defendant’s fifth affirmative defense and whether its conduct was “willful.”

 

FLSA Overtime Notice Permitted

The law firm of Massey & Duffy has been permitted to send the following notice of a FLSA collective action to numerous employees of a local company. The text of the notice is as follows:

NOTICE OF COLLECTIVE ACTION
THIS IS NOT A LAWSUIT AGAINST YOU. PLEASE READ THIS NOTICE CAREFULLY. YOUR LEGAL RIGHTS MAY BE AFFECTED

TO: All persons who work or have worked for SAL-MARK SERVICES, LLC, doing business as HOME BY CHOICE, who held job positions titled or classified as Caregiver and/or Companion Sitter at any time during the three years preceding the date of this Notice.

DATE: June 23, 2014

RE: Fair Labor Standards Act (“FLSA”) Lawsuit Filed Against SAL-MARK SERVICES, LLC, doing
business as HOME BY CHOICE

I.                                      INTRODUCTION

The purpose of this Notice is to inform you of a collective action lawsuit against SAL-MARK SERVICES, LLC, doing business as HOME BY CHOICE (referred to as “Defendant”), in which you are potentially “similarly situated” to the named Plaintiff, to advise you of how your rights may be affected by this suit, and to instruct you on the procedure for participating in this suit if you so desire.
As described more fully below, if you are eligible and wish to participate in this collective action, you must timely complete and submit the “Consent to Join” form attached to this Notice.
DESCRIPTION OF THE LAWSUIT
Plaintiff, Annette Strozier, (“named Plaintiff” or “Plaintiff”) has filed this action against Defendant on behalf of herself and all other past and present employees, who at any time during the preceding three years have held job positions titled or classified as Caregivers and/or Companion Sitters. Plaintiff alleges that the Defendant failed to pay them and past and present employees in the Caregivers and/or Companion Sitters positions overtime pay to which they were entitled under the Fair Labor Standards Act. Plaintiff alleges that these Caregivers and/or Companion Sitters were provided with a “Wage Scale” that provided “bonuses”, but that these bonuses were not included in the employee’s overtime wages earned for work performed during the last three years.
Plaintiffs also allege that they, and all employees similarly situated, are entitled to liquidated damages in an amount equal to the amount of unpaid overtime wages, and that they are entitled to prejudgment interest, attorneys’ fees, and costs associated with bringing this lawsuit.
The Defendant denies any and all liability, including Plaintiffs’ allegations that it failed to correctly compensate employees or that it is liable to Plaintiffs for any claimed violation of the FLSA.
THE CURRENT STATE OF THIS LAWSUIT
This lawsuit is in the very early stages of litigation. The Court has conditionally certified this case as a collective action and ordered this Notice be sent to you.
PERSONS ELIGIBLE TO RECEIVE THIS NOTICE
The U.S. District Court for the Northern District of Florida, Gainesville Division, has ordered this FLSA Notice to be distributed to all past, present and future employees of Defendant who have been employed as Caregivers and/or Companion Sitters at any time during the three years preceding the date of this Notice (“Covered Employees”).
YOUR RIGHT TO PARTICIPATE IN THIS SUIT
If you were employed by the Defendant as a Caregivers and/or Companion Sitters for any period during the three years prior to the date of this Notice and you believe that the Defendant has failed to pay you for all overtime compensation to which you are entitled, you have the right to join the pending lawsuit against.
If you want to participate in the lawsuit, you must take affirmative steps to indicate your intent to join the action. You must complete, sign and fax or mail a copy of your Consent to Join form, which is attached to this Notice, to Michael Massey of Massey & Duffy, 855 E. Univ. Ave., Gainesville FL 32601 (fax: 352-328-1814). If mailed, your signed Consent to Join form must be postmarked by no later than ___August 25, 2014_________. If faxed, your signed Consent to Join form must be successfully faxed no later than ___August 29, 2014_____.
If you fail to return the “Consent to Join” form to Massey and Duffy by __August 29, 2014_________, you will not be permitted to participate in this lawsuit.
Filing a “Consent to Join” form does not guarantee that you will be able to participate in the trial of this lawsuit as this may depend upon a final ruling from the District Courts that you and the named Plaintiff are “similarly situated” under federal law. Failing to return and have filed a “Consent to Join” form postmarked on or before the deadline means that you cannot be allowed to participate in any settlement or judgment for damages under the Fair Labor Standards Act as part of this lawsuit.
STATUTE OF LIMITATIONS
The Fair Labor Standards Act contains a limitations period of at least two years and potentially up to three years for the filing of a claim for unpaid overtime wages, after which the claim is forever barred. The statute of limitations on your claim for unpaid overtime wages will not stop running unless you elect to submit a Consent form and that form is filed with the Court. In the event that you decide not to file a Consent to Join in this Lawsuit, you should consult with your own attorney as to how the statute of limitations would apply to your claim.
EFFECT OF JOINING THIS SUIT
If you choose to file a “Consent to Join” form and the Court later permits your claims to proceed to trial as part of the collective action, you will be bound by any judgment regarding the FLSA claims entered in this case, whether favorable or unfavorable.
If you choose to join the collective action, you will be represented by the law firm currently representing the Plaintiff. The attorneys for the Plaintiff are being paid on a contingency fee basis, which means that if there is no recovery, there will be no payment to the attorneys. Attorneys for the Plaintiff may be paid either by the Defendant, or they may, either in addition to or instead of payment from the Defendant, receive a percentage of any money judgment or settlement in favor of you, or others similarly situated, as agreed by contract or ordered by the Court.

If you return a Consent to Join form, you should be aware that important decisions concerning the prosecution of this case including for the FLSA claims may be made on your behalf.
As an alternative to joining this lawsuit, you may file your own lawsuit with any counsel of your choosing, or do nothing.
NO LEGAL EFFECT IN NOT JOINING THIS SUIT
If you choose not to join this collective action, you will not be affected by any judgment or settlement in this case on this claim, and you will not be bound by any judgment on the Fair Labor Standards Act claim, whether favorable or unfavorable to the class. If you choose not to file a Consent to Join form, you are free to file your own lawsuit. If you choose not to file a Consent to Join form, the statute of limitations will continue to run until such time as you file a lawsuit on your own behalf.
NO RETALIATION PERMITTED
Federal law prohibits the Defendant or its agents from discharging or in any other manner discriminating against you because you elect to join this action by filling out and returning the “Consent to Join” form, or otherwise exercise your rights under the Fair Labor Standards Act.
X. ATTORNEYS FOR PLAINTIFFS
Michael Massey (FBN 153680)
massey@352law.com
MASSEY AND DUFFY, PLLC
855 E. UNIV. AVE.
Gainesville, FL 32601
Telephone: 352.505.8900
Facsimile: 352.414.5488

Further information about this Notice, the deadline for filing a “Consent to Join,” or questions concerning this lawsuit may be obtained by telephoning the Plaintiffs’ counsel at 352.505.8900.

                                                    XI.                         COURT AUTHORIZATION

This Notice and its contents have been authorized by the United States District Court. The Court has taken no position in this case regarding the merits of Plaintiffs’ claims or the defenses of the Defendant.