McALLEN — More than two dozen healthcare workers have filed a collective action wage theft lawsuit against their employer, Rehab Synergies, alleging the company enforced a policy of working off the clock without pay.
The lawsuit — which involves some 33 plaintiffs who worked at Rehab Synergies locations throughout the state — was originally filed in McAllen federal court in January 2018, but it wasn’t until this year that progress on the case has moved closer to trial.
The lawsuit was filed by Valerie Loy, a speech language pathologist who began working for the company in March 2014. She alleges the company’s compensation policies violated the Fair Labor Standards Act.
Rehab Synergies operates some 46 skilled nursing facilities throughout Texas, including two in the Rio Grande Valley — Colonial Manor in Pharr, and McAllen Nursing Center in McAllen.
The company provides short- and long-term residential care, primarily to elderly patients, who need physical, occupational, speech or other practical therapies. It also provides outpatient and home care services.
According to its website, the healthcare provider treats patients who need therapy for visual, cognitive or motor skill issues, strength and stability exercises, and other mobility issues.
But when Loy filed her lawsuit in 2018, she alleged that Rehab Synergies knowingly allowed its therapists to work off the clock in order to meet productivity standards, or face discipline.
“Due to onerous productivity requirements set by Defendant, Plaintiff and other therapists worked off the clock or otherwise underreported their time. Defendant knew this off the clock work was occurring and expressly encouraged it,” the complaint read, in part.
Loy worked at both facilities in the Valley, and alleged that the “onerous” productivity requirements were assessed to speech language pathologists like herself, but also to other kinds of therapists, including physical therapists, physical therapist assistants, occupational therapists and certified occupational therapist assistants.
According to company policy, such employees were paid on an hourly basis — but only certain kinds of work could be billed for compensation, the lawsuit claims.
Work that involved a patient counted toward an employee’s billable hours, but administrative tasks, such as attending work meetings, making photocopies, filing paperwork, scheduling and even some work-related travel did not.
Therapists were required to maintain a 90% or higher level of productivity, and were disciplined if they did not. The complaint alleges that policy was enforced throughout Rehab Synergies’ statewide network of facilities.
“In order to meet the productivity requirements, Plaintiff, and other similarly situated employees, routinely over reported the time they spent on lunch break, clocked out while remaining at work, finished paper work at home after clocking out, or a combination of the three,” the complaint reads.
“As a result of the under reporting of their time, Plaintiff and other therapists have been denied overtime payments that they are due. Defendant is aware that ‘off the clock’ work is occurring and expressly encourages it,” it further reads.
Shortly after filing the suit, three more employees joined Loy in the litigation. With allegations that those working conditions applied statewide, up to 1,000 therapists under Rehab Synergies’ employ could have conceivably joined the suit.
As such, in April 2019, U.S. District Judge Micaela Alvarez certified the lawsuit as a collective action.
Collective action lawsuits differ from class action suits in that any plaintiff who participates must opt in to the litigation in order to benefit from any judgment, while plaintiffs in a class action case will be bound to any judgments unless they opt out.
Now, three years after it was initially filed, the lawsuit includes just 33 employees who opted into the litigation. But that number may be whittled down even further — to about 28 plaintiffs, according to discussions held during a status conference Tuesday.
The number remains as yet uncertain because recent attempts to communicate with some of the plaintiffs have been unsuccessful, explained Jerry Martin, one of the plaintiffs’ attorneys.
Martin asked the court for more time to reach out to those plaintiffs before submitting a final list of participants, citing one particular person who had recently been hospitalized and was unable to respond.
That person has a claim that could involve “life altering damages,” Martin said.
The range of the wage theft claims varies among the plaintiffs. Some were only part-time workers whose hours worked may not have exceeded 40 per week, and therefore would not qualify for overtime pay.
However, others allege they worked full-time and went underpaid for as many as five years, according to Erika Leonard, the attorney representing Rehab Synergies.
The company wholly denies the plaintiffs’ allegations and, indeed, claims its policies prohibit the improper reporting of hours worked.
“Plaintiff was responsible for reporting her hours of work. Defendant neither knew nor had reason to know Plaintiff was working any uncompensated overtime hours and was not accurately reporting her hours of work,” the company said via its official answer to the lawsuit.
“At no time did Defendant engage in any wage and hour practice in a manner known or believed to violate any applicable FLSA requirements, nor did Defendant willfully disregard any applicable FLSA requirements,” Rehab Synergies further responded.
Each of the plaintiffs are expected to testify during trial next spring, as are a number of witnesses for the defense. With such a large number of witnesses — many of whom will have to travel to McAllen from across the state — much of Tuesday’s courtroom discussions revolved around the logistics of organizing their appearances.
In the end, Alvarez — a no-nonsense judge who, by her own admission, hates to waste time — asked each of the attorneys to recommend a timeline for such testimony and warned them that she would be willing to play timekeeper herself if things stretch on too long.
Jury selection is set for Feb. 22, 2022.
