OPINION AND ORDER Plaintiff Yvonne Downie, a former home health aide, brings this action against Defendants Carelink, Inc., Ena Bailey, and several Doe Defendants for violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§206(a) and 207(a), and the New York Labor Law, (“NYLL”), and for breach of contract and unjust enrichment. Two employment policies lie at the crux of Downie’s suit: (1) Defendants’ alleged failure to pay their employees overtime at time and one-half their regular rates, as required by the U.S. Department of Labor’s regulations governing home health aides; and (2) Defendants’ policy of deducting eight hours for sleep and three hours for meal breaks from their employees’ 24-hour shifts, amounting to a net compensation of thirteen hours of pay per 24-hour shift. Plaintiff also alleges that Defendants violated New York’s spread-of-hours law, Wage Theft Prevention Act, and Wage Parity Act.Plaintiff moves for conditional certification of a collective action under FLSA §216(b) for her overtime claims, and for certification of several New York-law classes under Federal Rule of Civil Procedure 23. For the reasons that follow, the Court grants Plaintiff’s motion for conditional certification and certifies a Rule 23 class of New York employees who were not paid proper overtime compensation. The Court denies certification as to all other proposed classes.I. BackgroundDefendant Carelink, Inc. is an employment agency that provides in-home care services to sick and elderly patients. (Dkt. No. 42-4 3.) Defendant Ena Bailey is Carelink’s President and principal owner. (Id. 1.)Plaintiff Downie worked for Carelink as a home health aide and maid from October 2012 to October 2015. (Dkt. No. 31 (“Downie Decl.”) 1.)1 Carelink sent Downie to work for clients in New York City and Nassau County. (Id. 2.)Plaintiff often worked 24-hour shifts, during which she would stay overnight at a client’s house. During these shifts, Downie’s sleep was often interrupted several times per night by her clients; sometimes, she was not offered a bed to sleep on and had to spend the night on a couch. (Id. 4.) She often ate while working because she was not accorded a meal break. (Id. 9.) Her responsibilities included cleaning the clients’ homes, taking out the garbage, making their beds, doing their laundry, and cooking them three meals per day. (Id.
13-14, 19-20.) At least 30 percent of her time was spent performing household work. (Id. 25.) Downie frequently worked more than 40 hours per week, and when she did, she was allegedly not paid at the proper overtime rate. (Id. 10.) She also alleges that she was occasionally required to work for two different clients in the same day, and was not paid for the time and expenses she incurred travelling between the two. (Id. 5.)Downie avers that “Defendants hired at least 40…home health aides/maids” who were similarly not paid their proper overtime, not paid for travel time and expenses between clients, not paid minimum wages and regular wage, and not properly compensated for their 24-hour shifts. (Id. 26.) Specifically, she named four other aides who told her that they did not receive pay for travel time, overtime pay, vacation pay or sick pay, or full compensation for their 24-hour shifts.Finally, Downie alleges that Defendants failed to provide her with Wage Theft Prevention Act notices, with the exception of “one notice [she] received shortly after [she] started working.” (Id. 33.) She alleges, on information and belief, that other employees were also not given the same notice. (Id.)Plaintiff filed this suit in July 2016, alleging that Defendants violated the FLSA, various NYLL provisions, New York’s Wage Parity Act, and New York’s Wage Theft Prevention Act. (Dkt. No. 1.) She now seeks to certify a FLSA collective action and four New York state law classes under Rule 23 of the Federal Rules of Civil Procedure. (Dkt. No. 33 at 3-5.)II. Legal StandardsPlaintiff’s motion to certify a FLSA collective action is governed by FLSA §216(b), while Plaintiff’s motion to certify various class actions is governed by Federal Rule 23.A. FLSA Collective CertificationSection 216(b) of FLSA authorizes employees to sue on behalf of “themselves and other employees similarly situated” for violations of FLSA’s overtime provisions. 29 U.S.C. §216(b); see also Colon v. Major Perry St. Corp., No. 12 Civ. 3788, 2013 WL 3328223, at *3 (S.D.N.Y. July 2, 2013). To participate in a FLSA collective, similarly situated employees must opt in by filing their “consent in writing to become…a party.” 29 U.S.C. §216(b); see also Colon, 2013 WL 3328223, at *3.The Second Circuit has established a two-step process for certifying a collective action under FLSA. “The first step involves the court making an initial determination to send notice to potential opt-in plaintiffs who may be ‘similarly situated’ to the named plaintiffs with respect to whether a FLSA violation has occurred.” Colon, 2013 WL 3328223, at *4 (quoting Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)). “At the second stage, the district court will, on a fuller record, determine whether a so-called ‘collective action’ may go forward by determining whether the plaintiffs who have opted-in are in fact ‘similarly situated’ to the named plaintiffs.” Id. at *5 (quoting Myers, 624 F.3d at 555)). If not, the action may be decertified. Id.The first step of the analysis — called “conditional certification” — “requires only a ‘modest factual showing’ from plaintiffs that ‘they and potential opt-in plaintiffs together were victims of a common policy or plan that violated the law.’” Id. at *4 (quoting Myers, 624 F.3d at 555). In other words, plaintiffs must identify a “factual nexus which binds the named plaintiffs and potential class members together as victims of a particular practice.” Shillingford v. Astra Home Care, Inc., 293 F. Supp. 3d 401, 407 (S.D.N.Y. 2018) (quoting Alvarez v. Schnipper Rests. LLC, No. 16 Civ. 5779, 2017 WL 6375793, at *2 (S.D.N.Y. Dec. 12, 2017)). “Accordingly, a[] FLSA collective action may be conditionally certified upon even a single plaintiff’s affidavit.” Id. (quoting Escobar v. Motorino E. Vill. Inc., No. 14 Civ. 6760, 2015 WL 4726871, at *2 (S.D.N.Y. Aug. 10, 2015)).“[A]t the conditional certification stage, ‘the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.’” Hypolite v. Health Care Servs. of N.Y. Inc., 256 F. Supp. 3d 485, 489 (S.D.N.Y. 2017) (quoting Cunningham v. Elec. Data Sys. Corp., 754 F. Supp. 2d 638, 644 (S.D.N.Y. 2010)). “If the employees are similarly situated…, ‘any factual variances that may exist between the plaintiff and the putative class [will] not defeat conditional…certification.’” Jackson v. Bloomberg, L.P., 298 F.R.D. 152, 158 (S.D.N.Y. 2014) (second alteration in original) (quoting Lynch v. United Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 369 (S.D.N.Y. 2007)).“[T]he initial conditional certification determination is merely a preliminary finding.” Lynch, 491 F. Supp. 2d at 368. At the second stage, after plaintiffs have opted in and discovery has occurred, “the court undertakes a more stringent factual determination as to whether members of the class are, in fact, similarly situated.” Id.B. Rule 23 Class CertificationClass certification is governed by Federal Rule of Civil Procedure 23. Section (a) of Rule 23 requires the party seeking certification to establish four prerequisites:(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.Fed. R. Civ. P. 23(a).In addition, “the movant must show that the action is one of three types described in Section (b).” Jackson, 298 F.R.D. at 159. Here, Plaintiff seeks certification under subsection (b)(3), which requires that a court to find “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). To decide whether the predominance and superiority requirements are satisfied, courts consider:(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and(D) the likely difficulties in managing a class action.Fed. R. Civ. P. 23(b)(3)(A) — (D).The Rule 23 requirements are more than a “mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). “Rather, the party seeking class certification must actually establish [Rule 23's] requirements by a preponderance of the evidence.” Jackson, 298 F.R.D. at 159. “While the plaintiff’s pleadings are assumed to be true, the court must nevertheless conduct a rigorous analysis to determine whether a class action is appropriate, considering materials outside of the pleadings and weighing conflicting evidence as necessary.” Id.III. DiscussionPlaintiff seeks to certify a FLSA collective of health aides employed by Carelink who were not paid adequate overtime compensation between January 1, 2015, and October 14, 2015. (Dkt. No. 34 at 1.) Plaintiff also seeks to certify five Rule 23 classes of health aides under New York state law: (1) employees who were not paid proper overtime compensation under the NYLL; (2) employees who were paid for only 13 hours out of their 24-hour shifts; (3) employees who were not paid a “spread-of-hours” premium; (4) employees who did not receive accurate notices as required by New York’s Wage Theft Prevention Act; and (5) employees who were not paid minimum wages under New York’s Wage Parity Act. (Dkt. No. 33 at 3-5.)A. FLSA Overtime Collective ActionSection 206 and 207 of the FLSA establish a minimum wage and overtime pay rate: The minimum wage applies to an employee’s first 40 hours worked per workweek, and the statutory overtime rate — one and one-half times the employee’s regular rate — applies to each hour worked over 40. 29 U.S.C. §§206-07. The overtime pay requirement, however, is subject to several statutory exemptions, including for “any employee employed in domestic service employment to provide companionship services for individuals who…are unable to care for themselves.” 29 U.S.C. §213(a)(15).Until 2015, this “companionship exemption” applied to all home healthcare aides, unless they could prove that more than 20 percent of their working time was spent performing general household work. See, e.g., Rodriguez de Carrasco v. Life Care Servs., Inc., No. 17 Civ. 5617, 2017 WL 6403521, at *4 (S.D.N.Y. Dec. 15, 2017). In October 2013, however, the Department of Labor (“DOL”) issued an interpretive regulation that excludes aides employed by third-party agencies, such as Carelink, from FLSA’s companionship exemption. See 29 C.F.R. §552.109; see also Rodriguez de Carrasco, 2017 WL 6403521, at *4. This DOL regulation was to take effect on January 1, 2015. See 29 C.F.R. §552.109.Before the regulation could take effect, however, its validity was challenged in the District Court for the District of Columbia. The district court vacated the regulation, see Home Care Ass’n of Am. v. Weil, 76 F. Supp. 3d 138, 147-48 (D.D.C. 2014), but the D.C. Circuit reversed and upheld the regulation, see Home Care Ass’n of Am. v. Weil, 799 F.3d 1084, 1097 (D.C. Cir. 2015). On September 14, 2015, DOL publicly stated that it would not bring enforcement actions against employers for violations of the regulation until “30 days after the date the Court of Appeals issues a mandate making its opinion [in Weil] effective.” Rodriguez de Carrasco, 2017 WL 6403521, at *4 (quoting Application of the Fair Labor Standards Act to Domestic Service; Announcement of 30-Day Period of Non-Enforcement, 80 Fed. Reg. 55,029, 55,029 (Sept. 14, 2015)). On October 27, 2015, DOL released another statement, identifying November 12, 2015, as the last day of the non-enforcement policy. Id.In the wake of the litigation over the validity of the DOL regulation, many FLSA defendants have argued, as Carelink does here, that the regulation did not become effective on January 1, 2015. “The great majority of courts” have concluded, however, that the regulation was effective as of January 1, 2015. Rodriguez de Carrasco, 2017 WL 6403521, at *4 (collecting cases); see also Shillingford, 293 F. Supp. 3d at 409 (reaching the same conclusion); Tagaeva v. BNV Home Care Agency, Inc., No. 16 Civ. 6869, 2018 WL 1320661, at *4 (E.D.N.Y. Mar. 13, 2018) (same). As the court explained in Green v. Humana at Home, Inc., “there is no reason to depart from the general rule that all civil judicial decisions apply retroactively. As a result, the [D.C. Circuit's] opinion in Weil nullified the D.C. District Court’s vacatur of the third-party employer regulation, and the regulation therefore should be treated as effective beginning on the regulation’s Congressionally prescribed effective date of January 1, 2015.” 16 Civ. 7586, 2017 U.S. Dist. LEXIS 162961, at *9 (S.D.N.Y. Sept. 29, 2017). The Court adopts the reasoning of Green and the other cases in this circuit that have reached the same conclusion: The relevant regulations took effect on January 1, 2015.Therefore, Plaintiff has satisfied her minimal evidentiary burden to establish that Defendants had a common policy of not paying overtime to home health aides who worked more than 40 hours per week and that she is “similarly situated” to other aides who were not paid overtime. In addition to Plaintiff’s own declaration (see Downie Decl.
