Home Health & Hospice Week

Aides not similarly situated, judge rules.

Home care providers may face fewer lawsuits based on the now-eliminated companionship exemption, thanks to a recent court decision.

In an Aug. 8 decision, a New York federal judge denied class action status in the lawsuit Cowell v. Utopia Home Care. In the suit, Shenithia Cowell attempted to sue Utopia for back wages based on minimum wage and overtime rules, both for herself and for up to 5,000 other works.

The court accepted the defendant’s arguments that each aide’s case would be fact-specific and thus, the plaintiffs were not similarly situated and couldn’t form a class action, according to the decision. Each aide’s case would depend on whether she spent more than 20 percent of time doing general household work.

“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 of Ford Harrison, a member of the defendant’s legal team, told Legal Newsline.

Without being able to form a larger class, such legal actions will attract less plaintiff attorney interest. “For a home care agency with hundreds ofhome care workers a collective or class action can quickly become a ‘bet-the-company’ case,” Ford Harrison attorneys Davidoff and Stephen Zweig say in a decision summary. Based on the decision, “if the right policies, procedures, and practices are in place at an agency and ‘nothing more than substantial allegations are made that the putative class members were together the victims of a single decision, policy or plan,’ … a conditional certification can be defeated,” they say.

See the decision at www.unitedstatescourts.org/federal/nyed/352072/57-0.html.