CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 1 of 14 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA TONA CLEVENGER, individually, on behalf of all others similarly situated, and on behalf of the Rule 23 Class Action, Plaintiff, Case No. v. HEALTHSTAR HOME HEALTH, INC., Defendant. CLASS AND COLLECTIVE ACTION COMPLAINT Plaintiff Tona Clevenger ( Plaintiff ), individually and on behalf of all others similarly situated (the FLSA Collective ), and on behalf of the members of the proposed Rule 23 Class ( the Putative Class ) (collectively similarly-situated nurses ), by and through her attorneys, Nichols Kaster, PLLP, brings this action against Defendant HealthStar Home Health, Inc. ( Defendant ) for damages and other relief relating to violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, et seq., and the Minnesota Fair Labor Standards Act (MFLSA), Minn. Stat. 177.21, et seq. Plaintiff alleges the following claims against Defendant: PRELIMINARY STATEMENT 1. Defendant engaged in illegal pay practices. 2. Defendant regularly failed to compensate Plaintiff and similarly-situated nurses properly for all overtime hours worked in violation of both the FLSA and the MFLSA.
CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 2 of 14 3. Defendant s pay violations described below amount to a willful pattern, policy, and practice of unlawful conduct. 4. In light of these systematic and illegal practices, Plaintiff asserts claims on behalf of herself and similarly-situated nurses who work or worked for Defendant as private duty nurses (sometimes referred to as per diem nurses) or as licensed practical nurses ( LPNs ) at any time from three years prior to the filing of this Complaint. Plaintiff seeks to represent both an FLSA collective and a Rule 23 Putative Class in prosecuting these claims. PARTIES Plaintiff 5. Plaintiff is an adult resident of the State of Minnesota. 6. Plaintiff is a registered nurse. 7. Plaintiff was employed by Defendant from approximately 2007 to September 2015 as defined by the FLSA, 29 U.S.C. 203(e)(1) and the MFLSA, including Minn. Stat. 177.23 and Minn. Stat. 177.24. 8. Plaintiff worked for Defendant as a private duty nurse, performing in-home nursing duties, from approximately 2007 until approximately July 2010. 9. She began working in this position again in February 2015, and was employed in the position until September 2015. 10. Between her two stints as a private duty nurse, she worked for Defendant as a case manager. 2
CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 3 of 14 11. Plaintiff consents in writing to assert her claims for unpaid wages under the FLSA pursuant to 29 U.S.C. 216(b). Plaintiff s signed consent form is attached as Exhibit A. As this case proceeds, it is likely other individuals will file consent forms and join as opt-in plaintiffs. Defendant 12. Defendant HealthStar Home Health, Inc. is a domestic corporation with its principal place of business in Saint Paul, Minnesota. 13. According to its website, Defendant provides a variety of home health, mental health, life and health management, home help, and personal care services. It employs over 800 care-givers companywide, and provides its services in communities in Minnesota, Wisconsin, and New Mexico. 14. Defendant s gross annual sales made or business done has been $500,000 or greater per year at all relevant times. 15. Defendant employed Plaintiff and similarly-situated nurses as defined by the FLSA, 29 U.S.C. 203(d), (g), and the MFLSA, including Minn. Stat. 177.23 and Minn. Stat. 177.24, and Minn. Stat. 181.171(4). JURISDICTION AND VENUE 16. This action arises under the FLSA, 29 U.S.C. 201, et seq. The Court has original jurisdiction to hear this Complaint and to adjudicate the claims stated herein pursuant to 28 U.S.C. 1331. 3
CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 4 of 14 17. This Court also has supplemental jurisdiction, pursuant to 28 U.S.C. 1367, over the state law claims asserted, as the state and federal claims derive from a common nucleus of operative fact. 18. Venue is proper in the United States District Court, District of Minnesota, pursuant to 28 U.S.C. 1391, because Defendant resides in this District and because a majority of the events giving rise to the claims occurred in this District. FACTUAL ALLEGATIONS RELATED TO ALL CLAIMS 19. Plaintiff re-alleges and incorporates by reference the above paragraphs as if fully set forth herein. 20. Plaintiff and similarly-situated nurses work or worked for Defendant as private duty nurses during the past three years. 21. Plaintiff and similarly-situated nurses are either licensed RNs or Licensed Practice Nurses ( LPNs ). 22. According to Defendant, Plaintiff and similarly-situated nurses perform inhome skilled nursing services for elderly or infirmed individuals. These duties may include but are not limited to: observation and assessment, management and evaluation of care plans, injections, ostomy care and teaching, insertion and irrigation of urinary catheters, wound dressings, therapeutic activities, and venipuncture. 23. Defendant compensates Plaintiff and similarly-situated nurses for this work using a combination of two methods. 4
CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 5 of 14 24. Under method one, Defendant compensates Plaintiff and similarly-situated nurses for each hour spent at certain clients homes. These clients are referred to as hourly clients. 25. Under method two, Defendant compensates Plaintiff and similarly-situated nurses using a per visit basis for certain clients (known as per diem clients ). The per diem rate for this work is a flat dollar amount paid per visit, regardless of the amount of time private duty nurses spend completing the duties required for that visit. 26. Defendant does not compensate Plaintiff or similarly-situated nurses on a salary or fee basis. 27. In counting Plaintiff and similarly-situated nurses total weekly hours worked, Defendant does not include hours they spent working with per diem clients. 28. For example, during the workweek ending April 26, 2015, Plaintiff completed seven per diem visits. The hours that she spent with the per diem clients were not recorded in her total hours worked that week on her paystub. 29. In calculating Plaintiff and similarly-situated nurses regular hourly rate of pay, Defendant also does not include the per diem wages earned. 30. Defendant suffers and permits Plaintiff and similarly-situated nurses to work more than forty (40) hours a week, and during some weeks more than forty-eight (48) hours, without receiving proper overtime pay for all overtime hours. 31. For example, during the workweek ending May 24, 2015, Defendant paid Plaintiff for a total of 71 regular hours at her hourly-client rate of $27.26 per hour. Defendant should have paid Plaintiff one-and-a-half her regular hourly rate for at least 5
CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 6 of 14 her 31 overtime hours. Defendant also should have provided Plaintiff with an overtime premium for those additional hours over forty she spent at her per-diem client that week. 32. In calculating Plaintiff and certain similarly-situated nurses overtime premiums, Defendant does not include the hours they work over forty in the week but less than forty-eight. 33. For example, during the workweek ending May 3, 2015, Defendant provided Plaintiff with an overtime premium for the hours she worked over forty-eight (48) with hourly clients. Defendant should have provided Plaintiff with overtime compensation for all hours worked over forty, not just forty-eight. 34. In addition to the week ending May 3, 2015, Defendant provided Plaintiff with some overtime compensation in at least one other instance. In both instances, however, Defendant claimed it paid Plaintiff by mistake, contending she was exempt from the FLSA. 35. Defendant was aware, or should have been aware, of its unlawful payment practices and recklessly chose to disregard the consequences of its actions. 36. For example, Defendant provided Plaintiff with overtime compensation during her first stint as a private duty nurse. Aside from the two instances above, Defendant knowingly failed to provide Plaintiff with overtime compensation during her most recent stint as a private duty nurse. 37. In fact, Plaintiff complained to her supervisors about the fact that she was not receiving proper overtime payments in May 2015. 6
CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 7 of 14 38. Plaintiff s supervisor agreed that she should be receiving overtime and agreed to speak to upper management regarding Plaintiff s complaint. Upper management did not explain why she previously received overtime compensation but was not currently. FLSA COLLECTIVE ACTION ALLEGATIONS 39. Plaintiff re-alleges and incorporates by reference the above paragraphs as if fully set forth herein. 40. Plaintiff brings Count I below individually and on behalf of all individuals similarly situated, specifically: All persons who work(ed) as private duty/per diem nurses (PDNs), or in positions with similar titles or duties for Defendant at any time since three years prior to the filing of this Complaint (the proposed FLSA Collective ) 41. Members of the proposed FLSA Collective are known to Defendant and are readily identifiable through Defendant s records. 42. Plaintiff and the FLSA Collective are all victims of Defendant s widespread, repeated, systematic, and consistent illegal policies that have resulted in violations of their rights under the FLSA, 29 U.S.C. 201, et seq., and that have caused significant damage to Plaintiff and the FLSA Collective. 43. These individuals would benefit from the issuance of court-supervised notice of this lawsuit and the opportunity to join by filing their written consent. 7
CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 8 of 14 RULE 23 CLASS ACTION ALLEGATIONS 44. Plaintiff re-alleges and incorporates by reference the above paragraphs as if fully set forth herein. 45. Pursuant to Federal Rule of Civil Procedure 23(a) and 23(b), Plaintiff brings Count II of this Complaint on behalf of herself and the following persons: All persons who work(ed) as private duty nurses/per diem nurses (PDNs), or in positions with similar titles or duties for Defendant at any time since three years prior to the filing of this Complaint (the Putative Class ) 46. The persons in the Putative Class are so numerous that joinder of all members of the Putative Class is impracticable. While the precise number of class members has not been determined at this time, Defendant has employed more than one hundred (100) individuals in positions with similar titles or duties during the statute of limitations period. 47. Plaintiff and the Putative Class have been equally affected by Defendant s violations of law. 48. There are questions of law and fact common to the Putative Class that predominate over any questions affecting individual members of the Putative Class, including but not limited to the following: a. Whether Defendant violated Minnesota law for failure to pay all overtime wages at one-and-one-half times the regular rate of pay for each hour over worked over forty-eight during a workweek; b. The proper measure and calculation of damages; and c. Whether Defendant s actions were willful or in good faith. 8
CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 9 of 14 49. Plaintiff s claims are typical of those of the members of the Putative Class. They have been subject to Defendant s practices and policies described in this Complaint. Further, Plaintiff s job duties are typical of the Putative Class, as all class members performed in-home nursing duties for the elderly or infirmed. 50. Plaintiff will fairly and adequately protect the interests of the Putative Class, and has retained counsel experienced in complex wage and hour class and collective action litigation to prosecute her claims. 51. This action is properly maintainable as a class action under Federal Rule of Civil Procedure 23(b)(3) because questions of law or fact predominate over any questions affecting individual class members, and a class action is superior to other methods in order to ensure a fair and efficient adjudication of this controversy. Individual plaintiffs often lack the financial resources to vigorously prosecute separate lawsuits in federal court against large corporate defendants to recover lost wages. Class litigation is also superior because it will preclude the need for unduly duplicative litigation resulting in inconsistent judgments pertaining to Defendant s policies and practices. There do not appear to be any difficulties in managing this class action. 52. Plaintiff intends to move for certification of the Putative Class as soon as practical under Federal Rule of Civil Procedure 23. 9
CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 10 of 14 COUNT I FEDERAL OVERTIME (Fair Labor Standards Act, 29 U.S.C. 201, et seq.) On Behalf of Plaintiff and the FLSA Collective 53. Plaintiff, individually and on behalf of the FLSA Collective, re-alleges and incorporates by reference the above paragraphs as if fully set forth herein. 54. The FLSA requires covered employers to pay non-exempt employees no less than one-and-one-half times their regular rate of pay for all hours worked in excess of forty (40) in a workweek. 29 U.S.C. 207. 55. Defendant is an enterprise as defined by the FLSA, 29 U.S.C. 2063(r)(1), and are engaged in commerce within the meaning of the FLSA, 203(b), (s)(1). 56. Plaintiff and the FLSA Collective qualified as non-exempt covered employees during the relevant time period. 29 U.S.C. 203(e)(1). 57. Plaintiff and the FLSA Collective regularly worked more than forty (40) hours per week for Defendant, but Defendant did not properly compensate Plaintiff and the FLSA Collective for all of their overtime hours as required by the FLSA. 58. Defendant did not and has not made a good-faith effort to comply with the FLSA as it relates to the compensation of Plaintiff and the FLSA Collective. 59. Defendant knew Plaintiff and the FLSA Collective worked overtime without proper compensation, and it willfully failed and refused to pay Plaintiff and the FLSA Collective wages at the required overtime rates. See 29 U.S.C. 255. 10
CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 11 of 14 60. Defendant s willful failure and refusal to pay Plaintiff and the FLSA Collective overtime wages for time worked violates the FLSA. 29 U.S.C. 207. 61. As a direct and proximate result of these unlawful practices, Plaintiff and the FLSA Collective suffered and continue to suffer wage loss and are therefore entitled to recover unpaid overtime wages for up to three years prior to the filing of their claims, liquidated damages or prejudgment interest, attorneys fees and costs, and such other legal and equitable relief as the Court deems just and proper. herein. COUNT II MINNESOTA OVERTIME (MFLSA, Minn. Stat. 177.21, et seq.) On Behalf of Plaintiff and the Putative Class 62. Plaintiff incorporates the above paragraphs by reference as if fully set forth 63. The MFLSA requires employers to pay their employees for all hours worked in excess of forty eight (48) in an individual workweek at a rate no less than one and one-half times their regular hourly rate of pay. Minn. Stat. 177.25. 64. Plaintiff and the Putative Class qualified as Defendant s employees within during the relevant time period the meaning of the MFLSA, Minn. Stat. 177.23 and 177.24. 65. Plaintiff and the Putative Class regularly workded more than forty-eight (48) hours per week for Defendant, but Defendant did not properly compensate Plaintiff and the Putative Class for all of their overtime hours as required by the MFLSA. 11
CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 12 of 14 66. Defendant knew, or recklessly disregarded the fact, that Plaintiff and the Putative Class worked overtime without proper compensation, and it willfully failed and refused to pay Plaintiff and the Putative Class wages at the required overtime rates. See Minn. Stat. 541.07. 67. Defendant s willful failure and refusal to pay Plaintiff and the Putative Class for overtime worked violates the MFLSA. 68. As a direct and proximate result of these unlawful practices, Plaintiff and the Putative Class suffered and continue to suffer wage loss and are therefore entitled to recover unpaid back wages for up to three years prior to the filing of their claims, liquidated damages or prejudgment interest, attorneys fees and costs, and such other legal and equitable relief as the Court deems just and proper. PRAYER FOR RELIEF 69. WHEREFORE, Plaintiff, individually and on behalf of the proposed FLSA Collective, prays for relief as follows: a. A finding that Plaintiff and the FLSA Collective are similarly stiuated; b. Certification of this case as a collective action pursuant to 29 U.S.C. 216(b); c. Authorization for the prompt issuance of notice to all those similarly situated, apprising them of the pendancy of this action and providing them with the opporutnity to assert timely FLSA claims by filing individual consent forms; d. Judgment against Defendant for an amount equal to Plaintiff s and the FLSA Collective s unpaid back wages at the applicable overtime rates; e. A finding that Defendant s violations of the FLSA are willful; 12
CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 13 of 14 f. An amount equal to Plaintiff s and the FLSA Collective s damages as liquidated damages; g. All costs and attorneys fees incurred prosecuting this claim; h. An award of any pre- and post-judgment interest; i. Leave to add additional plaintiffs or claims by motion, the filing of written consent forms, or any other method approved by the Court; and j. All further relief as the Court deems just and equitable. 70. WHEREFORE, Plaintiff individually and on behalf of the Putative Class, prays for relief as follows: a. Certification of this action as a class action pursuant to Fed. R. Civ. P. 23; b. Appointment of Plaintiff as a class representative and her counsel as class counsel; c. Judgment that Defendant s conduct as described herein be determined and adjudicated to be in violation of the the MFLSA; d. Judgment against Defendant for an amount equal to Plaintiff s and the Putative Class s unpaid wages; e. A finding that Defendant s violations are willful; f. An amount equal to Plaintiff s and the Putative Class s damages as liquidated damages; g. All costs and attorneys fees incurred prosecuting this claim; h. An award of any pre- and post-judgment interest; and i. All further relief as the Court deems just and equitable. 13
CASE 0:15-cv-03748 Document 1 Filed 09/28/15 Page 14 of 14 Dated: September 28, 2015 NICHOLS KASTER, PLLP s/ Rachhana T. Srey Rachhana T. Srey, MN Bar No. 340133 Rebekah L. Bailey, MN Bar No. 0389599 4600 IDS Center, 80 South 8th Street Minneapolis, MN 55402 Telephone (612) 256-3200 Fax (612) 215-6870 srey@nka.com bailey@nka.com ATTORNEYS FOR PLAINTIFFS 14