Basham v. Tailored Living Choices, LLC

Background

Genevieve Basham, Jennifer Raper, and George Pepper brought wage-and-hour claims against their current or former employer, Tailored Living Choices, LLC. The plaintiffs asserted claims under the Fair Labor Standards Act (FLSA) and California law. For the FLSA claims, they alleged that Tailored Living Choices failed to pay Instructional Assistants for all hours worked and failed to pay required overtime wages.

The alleged practices included requiring employees to clock out while traveling between clients' homes during the same workday; failing to count travel, overnight, sleep, and In-Home Supportive Services hours when calculating overtime; paying some hours above 40 per week at straight-time rates; and reducing overnight pay by at least $1 per hour. The plaintiffs also alleged that employees were interrupted during overnight shifts and sometimes had to sleep on couches or sleeping bags on the floor.

Conditional-certification standard

Under FLSA section 216(b), employees may bring a collective action on behalf of themselves and other employees who are similarly situated. Unlike a class action under Federal Rule of Civil Procedure 23, an employee generally must opt in by filing written consent to participate. At the initial notice stage, the court applies a relatively low standard and asks whether potential participants may be similarly situated. The court does not decide the ultimate merits of the wage claims at this stage.

Court's analysis

The plaintiffs submitted declarations from current and former Instructional Assistants describing similar job duties, overnight interruptions, reduced overnight rates, unpaid or undercounted overnight hours, overtime practices, and clocking out while traveling between work locations. Tailored Living Choices disputed whether its practices violated the FLSA and argued that it paid employees for travel time, although it did not dispute requiring employees to clock out during travel.

The court held that these arguments did not defeat conditional certification because they concerned the merits of the claims rather than whether the employees were similarly situated. Based on the pleadings, declarations, and record, the court found that the plaintiffs met their initial, relatively light burden concerning the alleged overtime practices and travel-related policy.

Scope of the collective

The plaintiffs proposed a collective covering non-exempt California Instructional Assistants who worked for Tailored Living Choices, LLC from June 29, 2017 through the present. They also proposed minimum-wage and overtime subclasses.

The court concluded that the plaintiffs had plausibly alleged willful violations at this preliminary stage. The court relied in part on allegations that Tailored Living Choices knowingly or repeatedly violated the FLSA and evidence that the U.S. Department of Labor had investigated the company from October 2015 through September 2016 and found noncompliance concerning weekly overtime. The court therefore used a three-year notice period rather than the ordinary two-year period.

The court conditionally certified this collective: "All current and former non-exempt employees who worked for Tailored Living Choices, LLC in the State of California in the position of Instructional Assistant at any time from December 1, 2020 through the present." The court did not state that it was separately certifying the proposed minimum-wage or overtime subclasses.

Notice and information production

The court authorized notice through mail, email, text message, and a website. It ruled that the notice did not need to warn that collective members might be responsible for the defendant's costs if the defendant prevailed because plaintiffs' counsel represented that counsel would pay all taxable costs in that event.

The court ordered removal of a sentence warning that an employee's rights might eventually be time-barred because the sentence was not sufficiently neutral. The notice must include contact information for both plaintiffs' counsel and defense counsel and explain each counsel's role. The court also ordered removal of a sentence encouraging recipients to contact a lawyer and required correction of listed typographical errors.

Within seven days after the order, the plaintiffs had to submit revised proposed notice, opt-in, and reminder forms for approval. Within 14 days, the parties had to submit a joint statement identifying the notice administrator and methods of notice. By the same deadline, Tailored Living Choices had to provide plaintiffs' counsel an electronic file containing specified identifying and employment information for Instructional Assistants employed from December 1, 2020 through the present.

Disposition

Judge Donna Ryu granted in part the plaintiffs' motion for conditional FLSA collective-action certification. The order conditionally certified the collective, authorized the notice process, required revisions to the notice materials, and ordered Tailored Living Choices to provide the specified employee information. The order did not resolve whether the alleged wage practices violated the FLSA or California law.