BROOKLYN, N.Y. (Legal Newsline) -- Magistrate Judge Steven Locke of the Eastern District New York, recently denied conditional certification under the Fair Labor Standards Act (FLSA) in the Cowell v. Utopia Home Care case. 

For some home health patients, a plan of care includes general household tasks.
For some home health patients, a plan of care includes general household tasks. | Janice Smits / Shutterstock

This decision prevents the Utopia Home Care employees from filing a class action suit and potentially changes the legal landscape in the New York home health industry. The plaintiff has already filed an appeal.


The plaintiff’s attorneys argued that up to 5,000 home health aides and personal care attendants should be able to participate in a class action suit to collect unpaid wages.

The wages in question would have represented hours worked and overtime pay for a three-year period prior to the implementation of the U.S. Department of Labor’s final rule on application of the FLSA to domestic service workers, which eliminated overtime exemptions for home care workers.

The rule was released in January 2015 but did not take effect until Oct. 13, 2015.


“Essentially, it’s one of the first, if not the first, decision specifically addressing the companionship services exemption at the conditional certification stage where a court declined to conditionally certify a group of home health aides,” Phil Davidoff, a member of the defendant’s legal team, told Legal Newsline.


The decision hinged on the proportion of time that a home health worker spent on tasks that fell outside the companionship work exemption — general household work considered unrelated to patient care. In order to consider an employee to be outside of the companionship services exemption, the employee would need to have spent more than 20 percent of the work week performing general household work.


“What we argued, and what the court accepted, is that even the household work that they say these employees performed was related to the care of the patient, because it’s in the plan of care,” Davidoff said. “And if the plan of care said ‘make the bed,’ that’s related, by definition, to the care of the patient.”


Plans of care are detailed documents that reflect both the patient’s condition and available resources. A patient with mobility problems and little or no family support, for example, might well have a plan of care that includes assistance keeping the bathroom clean. Another patient with more severe problems but family members willing to maintain the home might have a care plan without any housework included.


“For an individual plaintiff, you have to look at the condition of the house, other family members who are there … it involves very fact-specific, individualized assessments,” Davidoff said. Because every household and every patient differ, a class action suit would not foster judicial efficiency, the defendant argued.

“That’s what the court agreed with,” Davidoff said.


Traditionally, it had been assumed under federal law that home care aides were exempt from overtime pay.

“For the most part, that assumption was correct,” Davidoff said. Cases like this one involve actions that happened before the Department of Labor changed the FLSA guidelines in 2015. The statute of limitations is up to three years on the federal law and up to six years in New York, creating a potentially lucrative window of opportunity.


In the wake of the change removing the companionship services exemption, a large number of class action suits would have been likely. The decision therefore strikes a blow to plaintiffs seeking past compensation, as well as to their attorneys, as the courts must evaluate each plaintiff’s case individually.

“It’s in the interest of plaintiffs attorneys to get the larger class, because that’s obviously going to be more lucrative for them,” Davidoff said.

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