Gentiva Health Services
Practice Area: Civil RightsCase Status
On April 13, 2011, Judge Steve C. Jones of the U.S. District Court for the Northern District of Georgia granted plaintiffs’ requests to preliminarily certify a nationwide class of home healthcare clinicians employed by defendant Gentiva Health Services and to provide notice of the collective action and the opportunity to join the lawsuit to current and former Gentiva clinicians. Plaintiffs allege that Gentiva has misclassified them as exempt from the FLSA’s overtime compensation requirements and failed to pay them for all hours worked. Specifically, plaintiffs argue that because they are paid on an hourly basis for some or all of their work, they are not subject to the FLSA’s exemption for professionals, and are therefore due overtime.
Judge Jones held that preliminary certification and notice were appropriate because the registered nurses, physical therapists, and occupational therapists employed by Gentiva are similarly situated to each other and to named plaintiffs with respect to both their job requirements and the pay provisions that are at the heart of this case. Additionally, plaintiffs demonstrated that other clinicians would wish to join this action based on their showing that at least forty-three clinicians from twelve states had already consented to join the lawsuit.
Judge Jones found unconvincing Gentiva’s counterargument that plaintiffs “cannot establish an unlawful common policy” or a policy of hourly pay because its primary compensation plan pays clinicians on a “fee basis” for patient visits and on a “flat-rate basis” for other work. This argument ignores that, as Gentiva admits, the “flat rate” is in fact based upon the number of hours worked.
Pursuant to the Court’s order, Plaintiffs will soon send notice of the lawsuit and the opportunity to join to registered nurses, physical therapists, and occupational therapists who were employed by Gentiva at any time since April 13, 2008.
Case Background
A nationwide class action lawsuit was filed on May 10, 2010 against one the country’s largest home health care service providers. Filed in the U.S. District Court for the Eastern District of New York, the lawsuit asserts that Gentiva Health Services, Inc. (GTIV-NASDAQ) (“Gentiva”) violates the Fair Labor Standards Act (FLSA).
Class Action Complaint - May 10, 2010 [PDF]
The lawsuit, entitled Rindfleisch, et al. v. Gentiva Health Services, Inc., asserts that Gentiva, which employs some 30,000 health care workers, treats visiting nurses and other health care providers as exempt from the overtime requirements of the FLSA and refuses to pay these employees for all hours worked. The lawsuit complains that Gentiva pays nurses and other health care providers on a “per visit” basis for some work, an hourly rate for other work, and fails to pay anything at all for other hours worked. Plaintiffs allege this hybrid compensation scheme does not meet the requirements of state or federal wage and hour law.
Attorneys at Martin & Jones, PLLC and Cohen Milstein Sellers & Toll PLLC have requested in the complaint and will move the court to conditionally certify the lawsuit as a nationwide FLSA class action and provide all similarly situated employees notice for an opportunity to join the lawsuit so that all current and former Gentiva registered nurses, therapists, and other health care providers who are not paid for all hours worked may be eligible to participate in this legal action.
“Gentiva’s hybrid compensation scheme encourages employees to take on more patient visits, and work longer hours, while Gentiva reaps the benefits by reducing their labor costs and boosting their profit margins,” said Jill Hernandez, who worked for over ten years as a Wage and Hour Investigator with the U.S. Department of Labor prior to joining Martin & Jones, where she represents employees in violations of both federal and state wage and hour law.
Christine Webber, a partner at Cohen Milstein who has represented thousands of workers in wage and hour cases, noted: “These nurses are dedicated to their patients. They are caring for parents and grandparents, enabling them to stay in their own homes. We are equally dedicated to ensuring that these health care providers are paid for all the hours they work.”
Martin & Jones, PLLC is based in North Carolina, where the first two class representatives live, and Cohen Milstein Sellers & Toll PLLC has offices in Washington, DC and New York.