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Cummings v. Bost, Inc.

United States District Court, W.D. Arkansas, Fort Smith Division

March 31, 2015

JANET CUMMINGS, individually and on behalf of all others similarly situated, Plaintiff,
BOST, INC., d/b/a Bost, Defendant.


P.K. HOLMES, III, Chief District Judge.

Before the Court is Defendant Bost, Inc.'s ("Bost") motion to compel discovery (Doc. 45) and brief in support (Doc. 46), and Plaintiff Janet Cummings's response (Doc. 49). The Court held a hearing on this matter on March 19, 2015 with counsel for each party in attendance. For the following reasons, the Court finds that Bost's motion to compel should be GRANTED IN PART and DENIED IN PART.

I. Background

Bost is an Arkansas non-profit corporation that provides various levels of care to disabled individuals throughout Arkansas. From 2009 to 2012, Cummings was employed by Bost as a Residential Habilitation Aid ("RHA"), which involved providing direct daily care to Bost clients. Cummings brings this action[1] to recover, inter alia, unpaid overtime wages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et. seq., for Bost's failure to pay her and others who are similarly situated for hours worked in excess of forty per week. Specifically, Cummings claims that Bost required all RHAs to work in excess of forty hours per week, but had a policy to indiscriminately categorize RHAs as day-rate workers as opposed to hourly workers and exempt from the FLSA due to the "companionship exemption." Bost claims that this exemption was properly applied to any and all employees who claim they were denied overtime pay.

Bost's motion to compel asks the Court to enter an order compelling Cummings to produce complete responses to Bost's first set of interrogatories and requests for production. Specifically, Bost moves for Cummings to provide complete responses to Interrogatories 2, 3, 4, 6, 9, 11, 12, and 14, and Requests for Production 1, 2, 3, 5, 6, 7, 8, 9, 10, 16, 26, 27, and 28.[2] Bost asserts that the discovery at issue is necessary to assist in proving that Cummings was subject to the "companionship exemption" of the FLSA and in refuting Cummings's claims of hours worked. In response, Cummings contends that the discovery requests are irrelevant, overbroad, impose an undue burden, and are outside the scope of discovery. Cummings's overarching premise of her objections is that all discovery should be limited to the three year period prior to her filing a consent to join the original action, i.e., the statute of limitations period applicable to her claims.[3]

II. Legal Framework

Determining the scope of discovery is within the discretion of the Court. WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1039 (8th Cir. 2011). Federal Rule of Civil Procedure 26 provides for the discovery of relevant, non-privileged information which "appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b). "Relevance under Rule 26 has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). In any event, Federal Rule of Civil Procedure 26 "vests the district court with discretion to limit discovery if it determines, inter alia, the burden or expense of the proposed discovery outweighs its likely benefit." Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003).

Because Bost seeks information to assist it in proving the applicability of the companionship exemption of the FLSA, it is also necessary to understand some of the contours of that exemption. The Court first notes that Bost, as the employer, bears the burden of proof to establish that any exemption to the FLSA applies. Fast v. Applebee's Intern., Inc., 638 F.3d 872, 882 (8th Cir. 2011). The companionship exemption excludes from the FLSA overtime requirements "any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves...." 29 U.S.C. § 213(a)(15). "The term domestic service employment' refers to services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed." 29 C.F.R. § 552.3 (emphasis added). To summarize, "[a]n employer is not required to pay overtime to an employee who provides companionship services to the aged or infirm in a private home." Welding v. Bios Corp., 353 F.3d 1214, 1216 (10th Cir. 2004).

In seeking the discovery requests subject to the instant motion to compel, Bost is primarily concerned with determining whether its client received services in a private home, as that term is used in the regulations.[4] To show how its requests are relevant, Bost relies on the Tenth Circuit's analysis of the private home determination in Welding. 353 F.3d at 1218-21. Because the Eighth Circuit has not yet addressed the companionship exemption in detail and the Tenth Circuit's analysis appears well-founded, the Court considers Welding persuasive in ruling on the instant motion to compel.

"The definition of a private home' exists along a continuum." Id. at 1218 (citation omitted). "At one end of the continuum is a traditional family home in which a single family resides, ' which clearly constitutes a private home." Id. (citation omitted). "At the other end of the continuum is an institution primarily engaged in the care of the sick, the aged, the mentally ill, or a boarding house used for business or commercial purposes, which clearly do not constitute private homes." Id. (citation and internal quotations omitted). In determining whether the services were provided in a private home, "the object of evaluation is the living unit of the person receiving the services, i.e., the client." Id. The court must look at each living unit on a case by case basis to determine where on the continuum each lies. Id. at 1218-19.

The key inquiries in determining where on the continuum a living unit lies are "who has ultimate management control of the living unit and whether the living unit is maintained primarily to facilitate the provision of assistive services." Id. at 1219. To answer those inquiries, the Tenth Circuit enumerated the following factors to consider: (1) whether the client lived in the living unit as his or her private home before beginning to receiving the services; (2) who owns the living unit; (3) who manages and maintains the residence; (4) whether the client would be allowed to live in the unit if not contracting with the provider for services; (5) the relative difference in the cost/value of the services provided and the total cost of maintaining the living unit (including governmental subsidies); and (6) whether the service provider uses any part of the residence for the provider's own business purposes. Id. at 1219-20 (quotation marks omitted).

III. Analysis

As a threshold matter, the Court finds that the temporal scope of discovery should be limited to two distinct timeframes, the applicability of which depends on the types of information requested. First, as a general matter (and unless further limited by a specific request), for discovery requests that seek personal financial or tax records, Cummings need only provide responses for the timeframe of January 1, 2011 to August 25, 2014-the date Cummings filed her consent to join the original action. Several of Bost's requests seek either wholesale authorizations for Cummings's financial or tax records, or specific documents dating back to many years before Cummings began employment with Bost. Bost's reasons for seeking this information is to determine Cummings's methods of payment, other potential employers, and to show what hours she worked and, potentially, her whereabouts during the hours she claims to have worked for Bost. While the Court finds that the types of documents sought are relevant to determine damages and for Bost to defend the amount of hours allegedly worked, Bost provides no valid justification for the substantial breadth of its requests. Accordingly, the Court finds that limiting the relevant time frame for requests for financial and tax documents to January 1, 2011 to August 25, 2014 ("2011 timeframe") will provide Bost sufficient access to information to use for its intended purposes without imposing an undue burden on Cummings.

Second, the Court finds that Bost's requests that seek more general discovery of information aimed at defending its use of the companionship exemption should be limited to the period of January 1, 2007 to August 25, 2014 ("2007 timeframe"). Currently, Bost's requests in this regard generally encompass the past fifteen years-as noted above, a period that greatly exceeds the time that Cummings was employed by Bost. At the hearing on this matter, counsel for Bost explained that the reason for seeking information from such a broad time was geared toward preventing problems they faced in a similar litigation with witnesses lying and an abundance of nondisclosures. But Cummings was not a party or witness in that litigation, and there has been no indication that she has presented any such problems. Furthermore, requiring disclosures for the entire requested fifteen year period would create a substantial burden on Cummings, and Bost has not provided the Court with any reason to believe the potential benefits of information encompassing the entire period would outweigh that burden. Therefore, the Court declines to grant such a broad period of discovery given Bost's purported objectives. However, whereas Bost's proposed discovery is too broad, Cummings's proposal to limit discovery to the statute of limitations period is unnecessarily rigid under the facts and circumstances of this case. Specifically, the Welding factor-based inquiry may consider matters beyond the dates of liability and possibly the dates of Cummings's employment with Bost, at least to a reasonable degree. Accordingly, the Court finds it appropriate to limit the relevant time frame for the more general discovery requests (i.e., those not requesting Cummings's financial and tax records) to January 1, 2007 to August 25, 2014, as information from that period should provide Bost with sufficient access to information to make its case for the applicability of the companionship exemption.

The Court will now address each discovery request or group of requests subject to the instant motion to compel in light of Cummings's specific objections and the relevant timeframes outlined above.

1. Interrogatory 2

This interrogatory seeks the names and addresses for each of Cummings's employers for the past fifteen years. Bost explains that this information is needed to determine if the Bost client for whom Cummings provided services was living in Cummings's home before beginning to receive services through Bost. The Court agrees that this information is relevant in light of the first Welding factor relating to whether the client lived in a living unit before receiving services from the employee. Specifically, because Cummings has been employed by companies providing services similar to Bost's, this information could aid Bost in determining whether Cummings's provided her Bost client with services in the same home while employed at a different company. However, the Court also finds that the scope of this request should be temporally limited to the 2007 timeframe for the reasons described above. ...

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