Borup v. The CJS Solutions Group, LLC

Background

Timothy C. Borup worked for The CJS Solutions Group, LLC, doing business as The HCI Group, in May 2018. HCI hired him to assist healthcare providers at the Mayo Clinic with the transition to Epic, a patient-management software system. HCI called people performing this work at-the-elbow, or “ATE,” consultants.

HCI had reclassified most ATE consultants as employees under the Fair Labor Standards Act (FLSA) in May 2017. It did not reclassify medically trained individuals like Borup. Borup sued in June 2018, alleging violations of the FLSA and Minnesota wage-and-hour laws. In the motion addressed here, he sought conditional certification of an FLSA collective action and appeared to have abandoned class treatment for his state-law claim.

Borup proposed a collective covering individuals who were classified as independent contractors while providing at-the-elbow training or support for Epic systems or software. He sought to include both people who had not participated in an earlier FLSA settlement involving HCI and medically trained ATE consultants, whom the opinion refers to as Resident Activation Support Specialists, or RAs.

Timeliness

The operative scheduling order set April 1, 2019, as the deadline for motions concerning class certification. Borup did not seek to amend the scheduling order or extend that deadline. He argued that a stay related to another case and the parties’ work concerning that case justified the delay.

The court rejected that argument. It explained that the stay was lifted in May 2019 at Borup’s request and that Borup knew by then that the certification deadline had passed or would soon pass if the stay had paused the deadline. Under Federal Rule of Civil Procedure 16(b)(4), a scheduling order may be changed only for good cause and with the judge’s consent. The court found that Borup had not shown the required diligence and denied the motion as untimely on that basis alone.

FLSA Collective Certification

The court separately held that certification was unwarranted even if the motion had been timely. The FLSA permits an employee to bring a collective action for the employee and other employees who are similarly situated. Courts in the district use a two-stage process. At the initial stage, a plaintiff must provide evidence showing a reasonable basis to believe that the proposed members were affected by one decision, policy, or plan. A stricter review generally occurs later, after discovery.

The court did not decide which stage’s standard applied because Borup’s proposed collective failed under either standard. Borup had not shown that he was similarly situated to a large portion of the proposed group. The court reasoned that HCI’s decision to reclassify the ATE consultants involved in the earlier litigation, while not reclassifying medically trained ATE consultants like Borup, reflected different decisions rather than one common policy or plan.

The court also identified differences between the groups. Regular ATE consultants received $30 to $45 per hour, while RAs received $60 to $70 per hour. The court said the pay difference reflected the greater skill required of RAs. Of the 25 people who had filed notices of intent to participate by the time of the motion, only one was an individual from the earlier settlement group; the others were RAs who had worked at the Mayo Clinic in 2018.

Travel-Time Claims

Borup also argued that his claims included unpaid travel time and asked to pursue those claims while an appeal of the issue was pending. The court relied on an earlier ruling that such claims were not legally actionable and stated that Borup could not pursue them for himself or for the proposed collective.

Disposition

The court ordered that Borup’s Motion to Certify Conditional Class, Docket No. 194, was DENIED. The denial rested both on untimeliness under the scheduling order and, alternatively, on Borup’s failure to establish that the proposed collective members were similarly situated.