Askar v. Health Providers Choice, Inc.

Background

Maha Askar sued Health Providers Choice, Inc. on behalf of herself and others similarly situated. She alleged violations of the California Labor Code, California Business and Professions Code, and the federal Fair Labor Standards Act (FLSA). According to the allegations described in the opinion, Health Providers Choice employed non-exempt hourly health care professionals for travel assignments and paid them weekly per diem amounts in addition to hourly wages. The alleged violation was that the company did not include the per diem amounts and monetary bonuses in the regular pay rate used to calculate overtime and double-time pay.

The parties notified the court of a settlement in September 2020. The court preliminarily approved it on March 4, 2021. The settlement class covered all non-exempt hourly employees employed by Health Providers Choice in California between September 26, 2015, and the date of preliminary approval who worked at least one workweek in which they received overtime and per diem pay and/or a monetary bonus. The class contained 28 people.

The settlement created a non-reversionary $90,000 fund. The fund included attorney’s fees and costs, individual payments to class members, a service award to Askar, and settlement-administration fees and costs. Employer-side payroll taxes, if any, were not to be paid from the fund. Each class member would receive two checks: one representing 95% of the settlement payment for releasing the class claims, and another representing 5% as an FLSA settlement payment. Cashing the second check would opt the person into the FLSA collective and release that person’s FLSA claims.

Final Approval of the Class Settlement

The court reviewed whether the class met Federal Rule of Civil Procedure 23 and whether the settlement was fair, reasonable, and adequate. It found that joining all 28 class members in separate litigation would be impracticable. It found commonality because the central issue was whether Health Providers Choice improperly excluded per diem and bonus payments from overtime calculations. It found Askar’s claims typical of the class and found no conflict preventing Askar or her counsel from adequately representing the class.

The court also found that common questions predominated over individual questions. The need to calculate individual damages did not prevent class certification. The court determined that notice was adequate because notice reached all 28 class members, including two people whose notices were remailed after being returned as undeliverable. No class member objected.

Applying the factors used to evaluate class settlements, the court considered the apparent viability of the California claims, the defenses and risks of continued litigation, the amount offered, the discovery conducted, counsel’s experience, and the class’s reaction. The court found that the settlement was not the result of collusion and was fair, adequate, and reasonable. It therefore granted Askar’s Motion for Final Approval of Class Action Settlement.

FLSA Collective

The court addressed the settlement’s treatment of the FLSA claims separately. The parties had not previously obtained conditional certification or collected opt-ins from the proposed FLSA collective. Instead, the settlement used notice and cashing of the FLSA check as the method for opting in.

The court treated the final-approval motion as a motion to conditionally certify the collective. It found that the same 28 potential collective members were similarly situated because each had per diem or bonus payments that Health Providers Choice improperly excluded from overtime calculations. The court conditionally certified the collective, approved the parties’ supplemental FLSA notice, and ordered Askar to file a list of the class members who cashed their FLSA checks and opted in within 30 days after the checks’ expiration date.

Fees, Costs, Service Award, and Administration Expenses

Askar requested $22,500 in attorney’s fees, $2,754.56 in costs, a $1,000 service award, and $3,500 in settlement-administration expenses. The court approved the $2,754.56 in costs after reviewing the itemized expenses and finding them necessary for the litigation.

The court also approved the requested attorney’s fees. The request equaled 25% of the $90,000 settlement fund, which the court described as the benchmark percentage in the circuit. A lodestar cross-check—multiplying reasonable hours by reasonable hourly rates—also supported the award. Class counsel reported a total lodestar of $61,710, and the court found the hours and rates reasonable.

The court approved the $1,000 service award. Askar stated that she spent about 25 hours on the matter and faced a risk that serving as class representative could affect her ability to find further work as a travel nurse. The court also approved the $3,500 settlement-administrator fee because it did not exceed the cap set at preliminary approval.

Order

Judge Beth Labson Freeman granted the Motion for Final Approval of Class Action Settlement. She also granted the Motion for Attorney’s Fees, Costs, Service Award, and Settlement Administrator Expenses. The order additionally required the filing of the list of people who cashed their FLSA checks and opted into the collective.