Rehabilitating Long-Term Care Provider's Auto-Deduct Defense: Decertification at Last
Authored by Kristin G. McGurn
A federal judge in the Northern District of Ohio continued a recent trend in automatic meal break deduction litigation by decertifying a conditionally-certified nationwide class of HCR Manorcare’s nursing home employees (click to link HERE). The potential class included 44,000 current and former HCR workers from 300 short- and long-term assisted living, skilled nursing, and rehabilitation facilities across the country. Discovery involved managers, HR staff, and hourly employees at 26 facilities as plaintiffs hailing from 28 states had opted in to the suit. The court concluded that HCR’s meal break policy, which deducted 30 minutes automatically from timecards on certain shifts and required employees to report exceptions, was lawful. There was no allegation or evidence that HCR employed a policy to violate that compliant policy. Plaintiffs argued that the common theory of liability binding plaintiffs together was HCR’s lack of vigilance and involvement in local implementation. The court refused to maintain the conditional class based on HCR’s use of the automatic deduction itself. It focused instead on differences among the opt-in plaintiffs as to how managers in HCR’s far-flung network handled reporting of missed or interrupted meal breaks, their training on the policy, and encouragement for exception reporting. The court also found that differing responsibilities, employment experiences, personal habits, and individualized defenses among HCR’s registered nurses, licensed practical nurses, certified nursing assistants, and admission coordinators were too disparate to support a collective action. The court held that proceeding collectively would be neither fair nor useful if based on representative testimony, and was otherwise procedurally unmanageable. As a result, the court dismissed the claims of 318 opt-in plaintiffs.
Importantly, the court also refused to certify a partial collective action because discovery revealed that employees’ meal break experiences were not linked to their position, shift or facility, but rather to individual managers’ decisions in implementing policy. Plaintiffs did not suggest how sub-classes could be established.
Decertification of the conditional class followed a mandamus petition to the Sixth Circuit, in which HCR challenged, under federal rules governing joinder of parties and class actions, the familiar two-step process (conditional certification and notice/decertification) employed by most courts facing FLSA collective actions. Through the writ of mandamus, HCR sought to vacate the nationwide conditional certification and interrupt the delivery of notice to a sampling of employees across the country, relying on Wal-mart, Inc. v. Dukes principles (click to link HERE) that the district court had held were inapplicable to the collective action. Though the Sixth Circuit denied the writ, that court recently upheld decertification in similar automatic meal-period deduction cases in, White v. Baptist Mem’l Health Care Corp. (click to link HERE) and Frye v. Baptist Mem’l Hosp., Inc. (click to link HERE). The Northern District of Ohio, bound by those decisions, has continued this trend.