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Delgado v. Arbor Homecare Services, LLC

Superior Court of Massachusetts, Essex

May 10, 2016

Emanuel Delgado et al. and Others Similarly Situated
v.
Arbor Homecare Services, LLC et al No. 133862

          ORDER ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

          James F. Lang, Associate Justice

         The plaintiffs have brought a claim pursuant to G.L.c. 149, § 150 (the Wage Act) against the defendants for their alleged failure to pay overtime for hours worked in excess of forty hours per week. The plaintiffs have sued the defendants in their individual capacities, but they also seek to represent a class of similarly situated individuals. They have filed a motion for class certification of their claims pursuant to the Wage Act and Mass.R.Civ.P. 23. By their motion, as modestly amended in their reply to the defendants' opposition, the plaintiffs seek certification of a class composed of " [a]ll hourly employees who were employed by the defendant, Arbor Homecare Services, LLC., for any portion of the time between March 31, 2013 and March 31, 2015, and who were not timely paid at the lawful overtime rate for hours worked in excess of 40 hours in each of the said weeks." A non-evidentiary hearing on the motion was held on May 5, 2016. For the reasons that follow, the plaintiffs' motion for class certification is ALLOWED.

          In order to bring a class action under Mass.R.Civ.P. 23, a plaintiff must show: " (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Mass.R.Civ.P. 23(a); see also Weld v. Glaxo Wellcome, Inc., 434 Mass. 81, 86, 746 N.E.2d 522 (2001). Additionally, the plaintiff must prove that " questions of law or fact common to the members of the class predominate over any questions affecting individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Mass.R.Civ.P. 23(b). The decision to approve or deny class certification lies within the broad discretion of the judge. Weld, 434 Mass. at 84-85. " The plaintiffs bear the burden of providing information sufficient to enable the motion judge to form a reasonable judgment that the class meets the requirements of rule 23; they do not bear the burden of producing evidence sufficient to prove that the requirements have been met." Id. at 87.

         As a preliminary matter, the defendants argue that the plaintiffs' motion fails because the proposed class definition is not ascertainable without extensive and individualized factfinding that goes to the very heart of the plaintiffs' claims, i.e., whether overtime wages were properly paid. The court disagrees that it will be a labor intensive endeavor to determine whether a putative class member was an employee during the relevant time frame and whether he or she worked some amount of overtime without the requisite compensation.

         At oral argument, the defendants also asserted that the claims of the putative class members, including the named plaintiffs, have been settled in accordance with the defendants' settlement agreement with the Massachusetts Attorney General's Office (" OAG"). The defendants contend that all employee overtime hours that were worked without proper compensation were encompassed in the settlement. They further argue that, where they entered into such a voluntary agreement with the OAG, the putative class members are precluded from now bringing Wage Act Claims. The agreement settled the OAG's claims against the defendants for failing to pay overtime wages to its home health aides from September 1, 2013 through August 31, 2014. By its express terms, however, the agreement is between the defendants and the OAG only, and it does not bind the employees, nor release the defendants from liability, even as to the OAG, for any conduct beyond that described in the agreement. The agreement further states that the OAG cannot waive any statutory rights provided to individuals to pursue additional remedies (although the agreement does note that the defendants may be entitled to set-off for amounts paid under the agreement). It is thus clear that, even if the putative class members were beneficiaries of the settlement agreement and accepted payment thereunder of overtime wages due and owing them, they are not barred from proceeding with a Wage Act claim against the defendants. That being so, the plaintiffs are not required to show that they were not paid wages for a period beyond that covered by the settlement agreement itself. Moreover, nothing in the settlement agreement indicates that it reflected a determination by the OAG that the non-payment of overtime wages was confined to the one-year period of the agreement and that no other overtime wages were due and owing to any of the employees. It is therefore appropriate to expand the time frame, for purposes of defining the class, to a two-year period. The plaintiffs have done so by reasonably extending the settlement agreement time frame by six months in both directions.

         The court turns now to the certification criteria and considers them seriatim .

         1. Numerosity

          To meet the numerosity requirement, a class must be " so numerous that joinder of all members is impracticable." Mass.R.Civ.P. 23(a)(1). Impracticable in this contexts means " impractical, unwise or imprudent rather than impossible or incapable of being performed." Brophy v. School Comm. of Worcester, 6 Mass.App.Ct. 731, 735, 383 N.E.2d 521 (1978). " Considerations of efficiency, limitation of judicial resources and expense to the plaintiffs support a determination that joinder will not be required." Id. Mere numbers are not controlling. See Reporter's Notes to Mass.R.Civ.P. 23; Sandoval v. M.J.F. Bowery Corp., 2011 WL 5517330, *2 (Mass.Super. 2011).

         Based largely on the defendants' settlement agreement with the OAG, in which they admitted liability for failure to pay overtime wages to 376 employees over a 12-month period, the plaintiffs contend that the numerosity requirement is satisfied. The court agrees. While the settlement will not be admissible as proof of the validity of any claim or its amount, the court may properly consider it as some indicator of the potential number of claimants. The plaintiffs are not required to produce actual evidence at this stage. See Weld, 434 Mass. at 87; Sandoval, 2011 WL 5517330 at *2 (numerosity satisfied where plaintiffs estimated that at least seventy other individuals would qualify for the class).

         2. Commonality

          The plaintiffs must demonstrate that " there are questions of law or fact common to the class." Mass.R.Civ.P. 23(a)(2). The commonality requirement is met when the class members have a common interest that arises out of a common relationship to a definite wrong, and all class members have the right to seek the same relief against the defendants. Spear v. H.V. Greene Co., 246 Mass. 259, 266, 140 N.E. 795 (1923). " It is not essential that the interest of each member of the class be identical in all aspects with that of the plaintiffs." Id. Courts have given " permissive application to the commonality requirements." Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 606, 477 N.E.2d 116 (1985) (noting decisions under Fed.R.Civ.P. 23(a)).

         The defendants contend that commonality is lacking because the determination of liability will require a burdensome inquiry into each employee's individual circumstances. The court has already indicated its view to the contrary. And the differences to which the defendants point in the putative class members' positions, duties, and hourly wage rates do not deprive the class of commonality relating to their status as employees who were not paid overtime wages. The claims of the class members arise from either a decision or error by the defendants that was common to all of the aggrieved employees, and the defendants do not argue otherwise (as the court best understands it, the defendants assert, in effect, that an accountant or bookkeeper made a renegade decision to pay overtime wages at the usual hourly rate).

         3. Typicality

          A plaintiff must show that its claims are typical of the claims of the class. Mass.R.Civ.P. 23(a)(3). " Typicality is established when there is 'a sufficient relationship . . . between the injury to the named plaintiff and the conduct affecting the class, ' and the claims of the named plaintiff and those of the class 'are based on the same legal theory.'" Weld, 434 Mass. at 87 (alteration in original), quoting 1 H. Newberg, Class Actions ยง 3.13, 3-76 (3d ed. 1992). " The typicality requirement may be ...


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