On October 2, 2020, the U.S. District Court for the Eastern District of Michigan entered a stipulated order in Menth v. Concerto Healthcare, Inc., Case No. 2:20-cv-11514, conditionally certifying a collective of salaried, non-managerial workers who did utilization review. In this UM nurse overtime lawsuit, the parties agreed to the order, and the court approved notice. Jack Siegel, with co-counsel, represented the workers.
Judge Stephen J. Murphy, III signed the order on October 2, 2020. The parties consented and stipulated to its entry, so this was not a contested ruling. The court conditionally certified an FLSA collective and authorized notice.
The collective the court conditionally certified in 2020 included current and former salaried, non-managerial employees who worked for Concerto Healthcare, Inc. and performed utilization review duties. The order called them Utilization Management Nurses, or “UM Nurses.” It reached these workers at any location and at any time after June 10, 2017
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Notice schedule. Concerto had 14 days to disclose contact and employment information. Plaintiff’s counsel then had 14 days to send the notice packet by first class mail and email. Workers had 45 days to file a signed consent to join form, starting two days after the packet went out.
The order set the envelope and email subject line wording, marking the notice as court authorized. It was entered without prejudice to any Concerto motion to compel arbitration or to decertify or modify the collective.
The collective had no location limit. The order defined the group by pay and duties, not by office location.
A stipulated order means the employer agreed to step one. As general information, agreeing to conditional certification is not an admission of liability. Conditional certification is not a finding that anyone was misclassified or that Concerto broke the law. And the order left room for later arbitration and decertification motions.
The order does not state which overtime exemption, if any, was at issue. As general information, the FLSA requires overtime for hours over 40 in a workweek unless an exemption applies, and the employer must prove it. Employers sometimes classify nurses who do utilization review under the learned professional exemption. That exemption requires a salary basis and a main duty that truly requires advanced knowledge in a field of science or learning.
In 2020, federal courts in Michigan commonly used a two-step process for conditional certification. Here the parties agreed to the first step. Some federal appeals courts have since changed this approach — the Fifth Circuit in Swales v. KLLM Transport Services (2021) and the Sixth Circuit in Clark v. A&L Homecare & Training Center (2023). Clark now governs federal courts in the Sixth Circuit.
This page describes a 2020 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 done utilization review or utilization management work as a nurse for a health care company? Were you paid a salary and not paid overtime for hours over 40? Learn more about overtime in managed care, or contact the Siegel Law Group for a free consultation.
Related rulings: Kelly v. Evolent Health, another agreed order covering utilization review nurses, and Russell v. eQHealth, another consented order for salaried utilization management workers.
Not always. Federal regulations say registered nurses generally satisfy the professional exemption’s duties requirement (29 C.F.R. § 541.301(e)(2)). Even so, the nurse must be paid on a salary basis, and the primary duty must really call for advanced knowledge. Each UM nurse role turns on the real work, and the Concerto order did not decide the question.
Yes. Both sides consented and stipulated to the order, and the judge signed it on October 2, 2020. Concerto still kept the right to move to compel arbitration against particular workers and to seek decertification or modification of the collective. As general information, this kind of agreement is not an admission of liability or a ruling on whether anyone was owed overtime.
The order gave putative collective members 45 days to file a signed consent to join form with the court. The 45 days began two days after plaintiff’s counsel mailed or emailed the notice packet. Notice went by first class mail and email, and the envelope and subject line had to mark it as court authorized.
The Concerto order left that door open. It said the order was made without prejudice to any motion by Concerto to compel arbitration against an applicable putative collective member. As general information, whether a worker must arbitrate depends on whether that worker agreed to a valid arbitration contract that covers wage claims.
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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