On February 12, 2021, the U.S. District Court for the District of Massachusetts granted conditional certification of a collective of utilization review employees in Drake v. Tufts Associated Health Maintenance Organization, Inc., Civil Action No. 19-11876-FDS. In this Tufts Health Plan overtime lawsuit, the court granted the workers’ renewed motion for step-one notice over the health plans’ opposition. The Siegel Law Group represented the workers.
Chief Judge F. Dennis Saylor IV signed the Memorandum and Order on February 12, 2021. The defendants were two Tufts health plans. The order calls them Massachusetts-licensed HMOs. They review requests for care and decide coverage based on medical necessity.
The named plaintiff was a utilization review nurse. She alleged that Tufts classified all utilization review employees as exempt and denied them overtime. According to the complaint, her main job was reviewing benefit requests from health care providers against set guidelines and criteria. The complaint alleged she worked about 45 to 50 hours a week on a salary, with no overtime.
A second try, after targeted discovery. The court denied the first motion without prejudice in March 2020. That motion had listed 21 job titles but was not limited to them. The court ordered limited discovery on the shape of the collective, the basics of job titles’ duties, [and the] commonality of the policy.
In close paraphrase, the collective the court conditionally certified in 2021 included utilization review employees. They reviewed members’ clinical or medical information to decide whether requested products, services, or benefits were medically necessary under Tufts’s set guidelines. It was also limited to employees paid below an annual pay cap stated in the definition, which rose on January 1, 2020. The plaintiff said these workers held at least one of 14 specific positions.
The court found that the plaintiff had made the modest factual showing needed. Sworn statements and records indicated similar duties across titles. Workers with different titles said they all compared members’ clinical information to Medical Necessity Guidelines. Tufts’s own utilization management manual applied common policies to all utilization review staff.
Tufts argued that the group varied in qualifications, supervision, product teams, member populations, services reviewed, and use of guidelines. It wanted the collective limited to the positions held by the three plaintiffs. The court disagreed. It noted that in managed care it is not unusual for employees with similar duties to have different job titles, citing Deakin v. Magellan Health (D.N.M. 2018).
The court added: It may ultimately prove to be correct that the collective members are not similarly situated in ways material to plaintiff’s misclassification claim.
But at this stage, the plaintiff’s evidence was enough.
Notice terms. The court allowed notice by mail and email, plus one reminder by the same methods 30 days later. It denied notice by text message, finding it had the potential to be unduly intrusive and was not likely to be necessary with mail and email notice.
Tufts had 21 days to produce names, job titles, employee ID numbers, dates of employment, mailing and personal email addresses, and work locations. Information that was not reasonably accessible did not have to be produced, but Tufts had to make a reasonable effort to determine whether it had it.
The court also made the notice say more about what joining means. That includes possible depositions and trial, and a duty to keep evidence. The plaintiff had 14 days to submit an amended notice.
Utilization review staff often hold many different job titles. Here, the court looked past the titles to the work itself: comparing clinical information to medical necessity guidelines. A first motion that was denied without prejudice did not end the case. After targeted discovery, the narrower group won notice.
Tufts had asked the court to follow the Fifth Circuit’s new Swales decision. The court said no, based on the weight of case law in its own circuit and elsewhere. It also refused to use a tougher standard just because the parties had done some discovery.
Conditional certification is not a finding that anyone was misclassified or that Tufts broke the law.
The plaintiff sued under the FLSA and the Massachusetts Minimum Fair Wage Law, Mass. Gen. Laws ch. 151, § 1A. She brought the federal claim as a collective action and the state claim as a Rule 23 class action.
Workers in bona fide executive, administrative, or professional jobs are exempt from FLSA overtime. In proposed notice language, Tufts asserted that the workers were properly exempt under the professional, administrative, and/or highly compensated employee exemptions.
As general information, a Department of Labor rule says registered nurses generally meet the duties test of the learned professional exemption (29 C.F.R. § 541.301(e)(2)). That exemption also requires a salary basis and a primary duty that actually requires advanced knowledge.
The administrative exemption requires pay on a salary basis at or above a set minimum. The primary duty must be office or non-manual work directly related to the management or general business operations of the employer or its customers. It must also include the exercise of discretion and independent judgment on matters of significance.
The court applied, at the time of this 2021 order, the two-step approach most courts in its circuit used. At step one, a fairly lenient standard required some factual support that potential plaintiffs were similarly situated.
The Fifth Circuit had rejected the two-step approach weeks before this order, in Swales v. KLLM Transport Services (2021), and this court declined to follow it. The Sixth Circuit later adopted a different approach in Clark v. A&L Homecare & Training Center (2023). Learn more about overtime for utilization review work.
This page describes a 2021 court order. The time to join that collective was set by the court in that case. If you have worked in a similar role, the Siegel Law Group can evaluate your own claims.
Have you worked in utilization review at a health plan, checking requests against medical necessity guidelines? Were you paid a salary and classified as exempt, and did you work more than 40 hours in some weeks? A lawyer can review how you were paid. Contact the Siegel Law Group for a free consultation.
Related rulings: Gardner v. Fallon Health, another District of Massachusetts overtime case for care managers, Bellan v. Capital BlueCross, another overtime case for utilization review nurses, and Snider v. Quantum Health, another 2021 case for salaried utilization review employees.
Not automatically. In proposed notice language, Tufts asserted its reviewers were exempt under the professional, administrative, or highly compensated employee exemptions, while the plaintiff alleged they were misclassified. A Labor Department rule treats registered nurses as usually satisfying the learned professional duties test, but this collective was not limited to nurses, and every exemption also has pay and duties requirements. The 2021 Drake order did not decide the question.
Yes, if a court finds them similarly situated. In the Tufts case, the plan argued its reviewers differed by team, supervision, and services reviewed. The court found evidence that workers across titles did the same core task of checking clinical information against medical necessity guidelines. It noted that in managed care it is not unusual for workers with similar duties to hold different titles.
It is not always the end. In Drake v. Tufts, the first motion was denied without prejudice in 2020, and the court ordered limited discovery on job duties and common policy. The plaintiff then filed a renewed motion for a narrower group of utilization review employees. The court granted that motion in February 2021.
No. The court allowed notice by mail and email and one reminder by the same methods after 30 days. It found text messages could be unduly intrusive and were not likely needed when mail and email were used. It also required the notice to explain that joining could mean depositions, trial testimony, and preserving evidence.
The Siegel Law Group is a national overtime and wage law firm devoted entirely to representing workers denied overtime pay. Where many firms include wage cases as a small part of a broader employment practice, the Siegel Law Group has built its entire practice around overtime litigation — and the results reflect that commitment: $100M+ recovered for workers, 50+ class and collective action certifications, and 100+ federal lawsuits filed in 27+ federal courts nationwide. Founding attorney Jack Siegel is a Bloomberg BNA contributing author on wage and hour law.
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