United States District Court, D. Connecticut
DAVERLYNN KINKEAD et al., individually and on behalf of all others similarly situated, Plaintiffs,
HUMANA AT HOME, INC. et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
CLASS CERTIFICATION AND MOTION FOR LEAVE TO FILE AMENDED
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE
are home healthcare workers employed by defendant Humana,
Inc. and its corporate affiliates. They have filed this
collective and class action lawsuit alleging that Humana has
unlawfully failed to pay them time-and-a-half overtime wages
and unlawfully failed to pay them for the number of hours
that they worked. They bring their claims under the federal
Fair Labor Standards Act, as well as under the Connecticut
Minimum Wage Act and New York Labor Law.
now move for class certification and to file an amended
complaint to add an additional class representative. I will
grant in part and deny in their part the motion for class
certification. I will also grant their motion to file an
plaintiffs in this case are home healthcare workers (HHWs)
who go to the homes of elderly and disabled people to provide
“companionship services.” Plaintiffs all worked
for Humana, Inc. and related company defendants. Doc. #181 at
3 (¶¶ 7-10).
employs HHWs to serve clients in two types of arrangements:
as live-in and non-live-in caregivers. A
live-in caregiver spends a 24-hour shift in a client's
home, part of which time the caregiver sleeps and has meals
as needed. A non-live-in caregiver spends a distinct number
of hours or “shift” at a client's home
(e.g., an 8-hour or 12-hour shift).
Fair Labor Standards Act (FLSA) generally requires that
employers pay time-and-a-half wage rates for hours that an
employee works beyond the regular 40-hour work week.
See 29 U.S.C. § 207(a). In 2013, the U.S.
Department of Labor promulgated a new regulation, 29 C.F.R.
§ 552.109, which expanded the class of workers eligible
for overtime pay under the FLSA. Prior to the issuance of
this regulation, the FLSA's overtime pay requirements did
not apply to companionship service workers whose services
were provided by means of a third-party employer like Humana.
See Kinkead v. Humana, Inc., 206 F.Supp.3d 751, 753
(D. Conn. 2016). The new regulation eliminated this exemption
with an effective date of January 1, 2015. Ibid.
validity of the new regulation was put into doubt for a time
by court decisions in the District of Columbia. At first, a
district court in the District of Columbia vacated the rule
in late 2014, but then the D.C. Circuit reversed this
decision in August 2015. See ibid. (citing Home
Care Ass'n of Am. v. Weil, 76 F.Supp.3d 138 (D.D.C.
2014), rev'd and remanded, 799 F.3d 1084 (D.C.
Cir. 2015)). In the meantime, while the regulation remained
in limbo before the courts in the District of Columbia,
Humana did not generally pay overtime to its companionship
workers as the regulation required.
November 2015, plaintiff Daverlynn Kinkead sued defendants
Humana and its corporate affiliates, alleging that she had
worked as a HHW for Humana in Connecticut and that the new
regulation entitled her to overtime pay for hours that she
worked from January 2015 until May 2015. Doc. #1. Kinkead
based her claim on the FLSA as well as on cognate provisions
of the Connecticut Minimum Wage Act.
moved to dismiss Kinkead's complaint, contending that the
new regulation was not effective until the D.C. Circuit
issued its mandate reinstating the regulation on October 13,
2015. Doc. #14-4 at 2. In July 2016, I denied Humana's
motion, concluding that- notwithstanding the intervening
court challenge to the validity of the regulation-the
regulation went into effect as of its intended effective date
of January 1, 2015. See Kinkead, 206 F.Supp.3d at
753-55. In May 2017, I granted the parties'
joint motion for conditional certification of a national FLSA
collective action pursuant to 29 U.S.C. § 216(b). Doc.
litigation then took another turn in November 2017 when I
granted leave to file an amended complaint. Doc. #181. The
amended complaint added another co-plaintiff, Claude Mathieu,
who worked as a home healthcare worker for Humana in New York
from approximately February 2015 to July 2016 and who would
act as a class representative for Humana HHWs in New York
State. Doc. #181.
the terms of the amended complaint, both Kinkead and Mathieu
seek collective and class action relief to recover unpaid
overtime wages under the FLSA as well as under parallel
provisions of the Connecticut Minimum Wage Act and New York
Labor Law. In addition to their claims for overtime
hours, plaintiffs also seek relief for unpaid hours,
alleging that Humana systematically undercounted the number
of hours that it paid HHWs who worked for 24-hour live-in
shifts. Doc. #181 at 17-18 (¶¶ 64-73); Doc. #204-1
have now moved pursuant to Federal Rule of Civil Procedure 23
for certification of four different classes. The first two
classes-referred to as the “Effective Date”
classes for both Connecticut and New York-seek to be paid for
overtime hours that they worked from January 1 to October 12,
2015. Doc. #204-1 at 7-8. As discussed above, this
“Effective Date” period corresponds to the time
when there was legal uncertainty about the enforceability and
effective date of the new regulation that required
third-party employers to pay overtime to their companionship
second two classes-referred to as the “Unpaid
Hours” classes for both Connecticut and New York-seek
additional relief on the ground that Humana did not properly
calculate the hours to be credited for those HHWs who worked
24-hour live-in shifts. These unpaid hours claims turn on
plaintiffs' argument that both Connecticut and New York
law impose their own statutory minimum number of hours for
which any HHW who served a 24-hour live-in shift must be paid
and that Humana violated the statutory minimum law by paying
HHWs for only 8 hours of work per 24-hour live-in shift.
are additional differences between the claims of the
Connecticut Unpaid Hours class and the New York Unpaid Hours
class. For the Connecticut Unpaid Hours class, plaintiffs
seek certification of a class limited to HHWs who worked
live-in shifts between January 1, 2015, and January 25, 2016.
According to plaintiffs, Connecticut law entitled Connecticut
workers to be paid for 13 hours per live-in shift. Even
assuming some plaintiffs actually worked more than 13 hours
during a 24-hour live-in shift, plaintiffs seek payment only
for 13 hours as required by the statutory minimum.
New York Unpaid Hours class, plaintiffs seek certification of
a class of HHWs who worked between November 11, 2009, and the
present. Plaintiffs allege that New York live- in workers
were entitled under New York law to be paid for the full 24
hours of a live-in shift. Doc. #204-1 at 8-9.
complication for plaintiffs' claim is that courts are
broadly split on the question of whether New York law
requires that a HHW who works a 24-hour live-in shift be paid
for a full 24 hours or for only 13 hours. See Downie v.
Carelink, Inc., 2018 WL 3585282, at *9-*10 (S.D.N.Y.
2018) (citing cases). The issue is presently before the New
York Court of Appeals for definitive resolution. See
Andryeyeva v. N.Y. Health Care, Inc., APL-2018-00038
(N.Y. argued Feb. 12, 2019).
light of this legal uncertainty, plaintiffs base their unpaid
hours claim in the alternative on a 13-hour minimum. As with
the Connecticut unpaid hours claim, the New York plaintiffs
seek payment only for whatever is determined to be the
statutory minimum number of hours (i.e., either 24
hours or 13 hours) that is required to be paid for a 24-hour
live-in shift, and they do not seek an
individual-by-individual determination of the number of hours
actually worked by any HHWs during the course of serving a
24-hour live-in shift.
legal uncertainty about whether New York requires a full 24
hours of pay for a 24hour live-in shift also has implications
for the New York overtime claim that is pressed by the New
York “Effective Date” class. Indeed, Humana has
opposed plaintiffs' motion for class certification,
arguing among other reasons that, because the New York class
representative plaintiff (Claude Mathieu) worked only three
24-hour live-in shifts per week, she would not be an
appropriate class representative for the New York Effective
Date class in the event that it is decided that New York law
requires payment for only 13 hours per 24-hour live-in shift.
If New York law requires payment for only 13 hours for a
24-hour live-in shift, Mathieu's total hours would amount
to only 39 hours and fall below the 40-hour threshold for
overtime pay. See Doc. #234 at 12-14.
light of this challenge to Mathieu as an appropriate
representative, plaintiffs have moved in the interim to file
a second amended complaint to add Shirley Caillo as a
representative plaintiff for the New York classes alongside
Mathieu. Doc. #256. Caillo is a member of the FLSA collective
that I conditionally certified earlier in this litigation.
Doc. #169-1 at 1. Caillo alleges that she worked over 40
hours per week for Humana under either interpretation of the
New York law that governs the calculation of hours to be paid
for a 24-hour live-in shift. Doc. #256-1 at 4 (¶ 6).
Caillo also worked some non-live-in shifts, ibid.,
and during discovery, testified that she had received
overtime pay for at least some of that work. Doc. #279-2 at
argument, the parties agreed-at least for class certification
purposes and in light of discovery-that defendants paid
overtime during the Effective Date period to their New York
workers whose work week was composed entirely of non-live-in
shifts. Doc. #291 at 15-16, 44- 45. The parties do not
otherwise dispute that overtime was not paid to other workers
during the Effective Date period from January 1 to October
and Caillo both signed Humana's “Caregiver
Agreement” form when they started at Humana. Doc.
#234-9; Doc. #279-2 at 59-60. The Caregiver Agreement stated
that each HHW would be paid $10 per hour for each non-live-in
shift, and $130 per day for each 24hour live-in shift. Doc.
#234-9 at 1; Doc. #279-2 at 59. The Caregiver Agreement also
specified that HHWs were “paid for 8 hours of
intermittent work per day at the Live-in pay rate.”
Doc. #234-9 at 1; Doc. #279-2 at 59.
the course of depositions, Humana executives suggested that
Humana used its Caregiver Agreements nationwide, Doc. #234-5
at 17, and that in any event, Humana had a general policy of
counting each 24-hour shift as only eight hours of work, Doc.
#234-2 at 4-5. Humana also claims that it paid its HHWs $130
per day, and in doing so satisfied all applicable wage laws.
Doc. #234 at 12-13.
of the Federal Rules of Civil Procedure permits a federal
court to certify a class action by which named plaintiffs may
litigate claims on behalf of a class of similarly situated
aggrieved class members. “Class actions under Rule 23
of the Federal Rules of Civil Procedure are an exception to
the general rule that one person cannot litigate injuries on
behalf of another.” Langan v. Johnson & Johnson
Consumer Cos., Inc., 897 F.3d 88, 93 (2d Cir. 2018). On
the other hand, no class may be certified under Rule 23 if it
is apparent that any member of the proposed class lacks
Article III standing. See Denney v. Deutsche Bank
AG, 443 F.3d 253, 263-64 (2d Cir. 2006).
order for the Court to grant plaintiffs' motion to
certify a class under Rule 23(b)(3), plaintiffs must satisfy
seven requirements. First, plaintiffs must satisfy the four
threshold requirements of Rule 23(a)-numerosity, commonality,
typicality, and adequate representation of the class. See
In re Petrobras Secs., 862 F.3d 250, 260 (2d Cir. 2017).
Next, plaintiffs must satisfy two more requirements under
Rule 23(b)(3)-predominance and superiority. In addition,
plaintiffs must also satisfy “an implied requirement of
ascertainability” to ensure that the class is
sufficiently definite so that the Court can determine whether
a particular individual is a member. See Petrobras,
862 F.3d at 260. I will review each of these requirements in
turn to determine whether to grant plaintiffs' motion for
axiomatic that federal courts lack jurisdiction over a
lawsuit unless a plaintiff alleges a concrete and
particularized injury-in-fact that is fairly traceable to a
defendant's wrongful conduct and redressable by a court
order. See, e.g., Spokeo, Inc. v. Robins,
136 S.Ct. 1540, 1547 (2016); Crupar-Weinmann v. Paris
Baguette Am., Inc., 861 F.3d 76, 79 (2d Cir. 2017).
“The filing of suit as a class action does not relax
this jurisdictional requirement.” Denney, 443
F.3d at 263. Accordingly, as the Second Circuit has made
clear, not only must the named plaintiff in a class action
have individual standing to sue, but “no class may be
certified that contains members lacking Article III
standing.” Id. at 264. While each member of a
class is not required to submit evidence of personal
standing, id. at 263, the class nonetheless
“must . . . be defined in such a way that anyone within
it would have standing.” Id. at 264. Of
course, if the rule were otherwise, then class actions would
become a means for courts to award money and relief to
multitudes of class members who were never injured at all.
argues that Mathieu lacks standing to assert any overtime
claims because, if New York law is interpreted to require
payment for only 13 hours of a 24-hour live-in shift, then
Mathieu's claim to have worked three live-in shifts per
week would result in only 39 hours per week, which is below
the overtime threshold. Although Humana might eventually be
proved correct on this legal issue, Mathieu is entitled for
purposes of a standing inquiry to the benefit of her
interpretation of the law under which she has alleged an
injury. “Where a plaintiff alleges a concrete, economic
injury resulting from a defendant's violation of a
statutory provision, the plaintiff has alleged a sufficient
injury to establish Article III standing, regardless of the
merits of the plaintiff's statutory
interpretation.” Dubuisson v. Stonebridge Life Ins.
Co., 887 F.3d 567, 574 & n.10 (2d Cir. 2018). The
right interpretation of New York law is a question for the
merits of Mathieu's claim, but no matter how that
question is resolved, she has standing for now to pursue it.
also challenges Mathieu's standing to assert a claim for
unpaid time on behalf of the New York Unpaid Hours class,
again on the theory that Mathieu's $130 daily rate
satisfied the minimum wage provisions of the NYLL if she only
needed to be credited with 13 hours of work per 24-hour
shift. Doc. #234 at 13. This argument is misplaced for the
same reason: that the correct statutory interpretation is a
question for the merits, not for standing. See
Dubuisson, 887 F.3d at 574.
though Mathieu has standing to assert a claim for overtime,
it is clear that plaintiffs have overbroadly defined the
Effective Date classes to include HHWs who would have no
standing to assert an overtime claim. Plaintiffs'
proposed Effective Date classes include all of Humana's
HHWs who were employed in Connecticut and New York from
January 1, 2015, to October 12, 2015, but without any further
requirement that each class member have worked more than 40
hours per week. Doc. #204 at 1. If an employee has not worked
more than 40 hours per week, then the employee plainly lacks
standing to pursue a claim against the employer for failure
to pay overtime. Plaintiffs acknowledged this shortcoming at
oral argument. See Doc. #291 at 6-8.
“[a] court is not bound by the class definition
proposed in the complaint, ” Robidoux v.
Celani, 987 F.2d 931, 937 (2d Cir. 1993), and
Humana's objection to the overbroad proposed definition
of the Effective Date classes “is readily met by
redefining the classes to include only those persons who
worked more than 40 hours per week.” Strauch v.
Comput. Scis. Corp., 322 F.R.D. 157, 180-81 (D. Conn.
2017). I will therefore narrow plaintiffs' proposed
Effective Date classes to include only those Humana HHWs in
Connecticut and New York who worked over 40 hours in a week.
short, I conclude that the Effective Date classes (as more
narrowly defined) and the Unpaid Hours classes as defined are
sufficient for standing purposes because they are defined to
include only members who have standing to pursue a claim on