Cleveland, OH (February 14, 2013) – A team of lawyers from Littler Mendelson, P.C. (Littler), the world’s largest employment and labor law firm representing management, successfully defended HCR ManorCare Inc, the nation’s largest operator of for-profit skilled nursing and assisted living facilities, in a case seeking to convince the federal district court to certify a nationwide Fair Labor Standards Act (FLSA) collective action.  

The matter, Creely v. HCR ManorCare Inc., could have included about 44,000 hourly nursing home and rehabilitation center employees who alleged HCR ManorCare’s meal break policy violated the FLSA.  U.S. District Judge Jack Zouhary of the U.S. District Court for the Northern District of Ohio recently decertified the collective action.

HCR ManorCare had a policy of automatically deducting 30-minute meal periods from employee time records while advising employees to notify their supervisor and complete a “missed punch form” if they were unable to take a full, uninterrupted meal. A group of HCR registered nurses, licensed practical nurses, certified nursing assistants, and admissions coordinators sued HCR ManorCare in December 2009 alleging that the company violated FLSA by failing to compensate workers who missed or worked through those meal breaks. 

In June 2011, the district court conditionally certified a FLSA collective action. Given that the class could have included about 44,000 hourly employees nationwide, notices of the action were sent to a sample class of about 3,239 current and former HCR workers from 29 facilities in 28 states.

About 318 employees from the sample class opted into the action. During discovery, depositions were taken and defended by a Littler team of lawyers from its various U.S. offices. At the close of discovery, plaintiffs moved for final certification of the collective action, while HCR moved to decertify the class.

The testimony concerned whether workers and managers received information about the auto-deduct policy and the missed punch forms during orientations; whether they signed documents acknowledging their receipt and understanding of the policy; and whether they were otherwise trained on how to report missed breaks. In addition, the attorneys for HCR ManorCare argued that the different factual circumstances of each affected employee rendered class-wide treatment of their claims untenable.

“This was a high stakes case for HCR ManorCare and we are delighted by the outcome,” said Robert Wolff, co-chair of Littler’s Healthcare Practice who represented HCR ManorCare. “This decision is indicative of HCR ManorCare’s high ethical standards and demonstrates the company’s vigilance when it comes to its compliance obligations.”

The Littler team relied upon deposition testimony from 78 opt-in plaintiffs and HCR ManorCare administrators and human resources officers. As the court observed in its opinion, HCR’s testimony suggested that the hourly employees’ abilities to have uninterrupted meal periods “depended on their particular facility, unit, shift, patient population, job duties, and individual habits.”

In decertifying the collective action, Judge Zouhary found that the class members’ wide-ranging employment settings and individualized experiences weighed against a determination that they are similarly situated and that the varying witness testimony in the instant case “weighs against final certification.” 

In addition, the court found that any defenses available to HCR ManorCare would be individualized and would “overwhelm any trial of this case as a collective action.”  Finding there to be no suitable sub-classes, the court dismissed all 318 opt-in claims.

The Littler team representing HCR ManorCare included attorneys Robert Wolff, Brad Sherman, Alex Frondorf, David Haase, Inna Shelley, Matthew Hank and William Simmons.

About Littler Mendelson

Littler Mendelson is the world’s largest labor and employment firm exclusively devoted to representing management.  With over 950 attorneys and 57 offices throughout the U.S. and globally, Littler has extensive resources to address the needs of U.S.-based and multi-national clients from navigating domestic and international employment laws and labor relations issues to applying corporate policies worldwide. Established in 1942, the firm has litigated, mediated and negotiated some of the most influential employment law cases and labor contracts on record.