Hana Etcheverry v. Franciscan Health System d/b/a CHI Franciscan Health, Franciscan Medical Group, Franciscan Health Ventures, Harrison Medical Center, and Harrison Medical Center Foundation
Case No. 3:19-cv-05261-RJB-MAT
You may be entitled to money from a class action settlement if you are a current or former hourly, non-exempt employee employed by Defendants in Washington in one or more of the job classifications listed below and subjected to an automated 30-minute meal period deduction at any time from April 9, 2015 to June 16, 2021.
The Court has granted preliminary approval of a proposed settlement (“Settlement”) of the above-captioned action (“Class and Collective Action”). Because your rights may be affected by this Settlement, it is important that you read all of this information carefully.
The purpose of this website is to provide a brief description of the claims alleged in the Class and Collective Action, the key terms of the Settlement, and your rights and options with respect to the Settlement.
The Court has not determined that Defendants violated the law. The two sides disagree on whether Plaintiff or Defendants would have prevailed if the case had gone to trial. Defendants deny that they violated any laws or that they have harmed their employees in any way.
Eligibility requirements for receiving payments are described in this website. Payments will only be issued if the Court grants final approval of the Settlement
FREQUENTLY ASKED QUESTIONS
Defendants’ records indicate that you were employed in one of the positions listed in Section 4 below at some time from April 9, 2015 to June 16, 2021, making you a Class Member and potentially a FLSA Collective Member depending upon your dates of employment and whether you opt in as discussed in Section 8 below.
The parties to this Class and Collective action have entered into a Settlement to avoid the cost and risk of further litigation. Defendants deny all the legal claims in the case. The Plaintiff and her attorneys think the Settlement is in the best interest of the Class and Collective Members. The Court has preliminarily approved the Settlement. The Court must also grant final approval for the Settlement to be valid. If the Court approves the proposed Settlement, your legal rights may be affected.
This Class and Collective Action was commenced by Plaintiff Hana Etcheverry on April 9, 2019 in the United States District Court, for the Western District of Washington, Case No. 3:19-cv-05621-RJB-MAT. Plaintiff brought this lawsuit against Defendants seeking damages, restitution, penalties, interest, costs and attorney’s fees and other relief based on the following alleged causes of action: (1) failure to pay overtime in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207; (2) failure to pay overtime in violation of Revised Code of Washington (“RCW”) 49.46.130; (3) failure to provide required meal breaks; (4) failure to provide required rest breaks; (5) failure to pay minimum wages; (6) failure to pay all wages owed at termination; (7) willful refusal to pay wages; and (8) violation of the Washington Consumer Protection Act, RCW 19.86. Plaintiff seeks a monetary recovery on behalf of the Class and the FLSA Collective for the alleged violations, along with interest, costs, and fees.
The Court has not made any determination as to whether the claims advanced by Plaintiff have any merit. The Court has not determined whether any laws have been violated, nor has it decided in favor of Plaintiff or Defendants. Defendants expressly deny that they did anything wrong or that they violated the law and further deny any liability whatsoever to Plaintiff or to the Class or FLSA Collective. Both sides agreed to resolve the lawsuit with no decision or admission of who is right or wrong. By agreeing to resolve the lawsuit, all parties avoid the risks and cost of a trial.
The Settlement that you are receiving notice about involves a class action and also a collective action. The following claims in the lawsuit are class action claims: (1) failure to pay overtime in violation of RCW 49.46.130; (2) failure to provide required meal breaks; (3) failure to provide required rest breaks; (4) failure to pay minimum wages; (5) failure to pay all wages owed at termination; (6) willful refusal to page wages; and (7) violation of the Washington Consumer Protection Act, RCW 19.86. Additional claims involving the federal FLSA for unpaid wages are what is referred to as a “collective action.”
A “class action” and a “collective action” have different requirements for how you participate in or exclude yourself from the Settlement.
If you wish to participate in the Class Action Settlement, you do not have to do anything. You will receive money under the Class Action Settlement by doing nothing. If you want to be excluded from, and not bound by, the Class Action Settlement, then you must submit a Request for Exclusion in the manner and timeframe described in this Notice.
If you also want to participate in the FLSA Collective Action Settlement, then you must opt in by submitting the FLSA Collective Consent Form provided with your Notice, and you must do so within the timeframe described in this website. Unlike with the Class Action Settlement, if you do not return your FLSA Collective Consent Form, then you will not receive money under the FLSA Collective Settlement.
In sum, for the Class Action Settlement, you don’t have to do anything to get the money and to be bound by the release of class action claims. However, for the FLSA Collective Settlement, you must submit the FLSA Collective Consent Form to receive money from the FLSA Net Settlement Fund. If you don’t submit the FLSA Collective Consent Form you will not receive a Settlement Share from the FLSA Net Settlement Fund or be bound by the release of collective action claims.
You are a Class Member if you are a current or former hourly, non-exempt employee employed by Defendants in Washington in one or more of the job classifications in the list below and were subjected to an automated 30-minute meal period deduction policy at any time from April 9, 2015 through June 16, 2021 (the “Class Period”).
Certified Medical Assistant (“CNA”)
CNA-Health Unit Coordinator
CNA-Home Health Aide
CNA-HUC-Monitor Tech Combo
CAN-Transporter Diag Imaging
Endoscopy Tech I
Endoscopy Tech II
Endoscopy Tech Lead
Licensed Practical Nurse (“LPN”)
LPN-Anesthesia Tech Cert
LPN-Clinic Float II
LPN-Clinic Gastro Preadmit
Medical Assist Clinic Float
Medical Assistant Clinic
Medical Assistant Clinic Lead
Medical Assistant Float II
Medical Assistant Lead
Medical Assistant Reg Float
Medical Assistant-Ortho Cast
Medical Assistant-Ortho Cast Lead
Monitor Tech-HLT Unit Coord LD
Reg Medical Assistant Clinic
Registered Medical Assistant
Registered Nurse (“RN”)
RN-Charge Relief Cert
RN-Clinic Float II
RN-Clinic Gastro Cert
RN-Clinic Oncology Cert
RN-Clinic Oncology Lead-Cert
RN-Patient Care Coordinator HA
RN-Patient Care Coordinator HART
RN-Patient Care Coordinator IP
RN-Patient Care Coordinator RR
RN-Resource Periop Cert
RN-Wound Care Coordinator
RN-Wound Care Coordinator Cert
You are a FLSA Collective Member if you are a current or former hourly, non-exempt employee employed by Defendants in Washington in one or more of the job classifications listed in Section 4 above and were subjected to an automatic time deduction policy and practice at any time from April 9, 2016 through June 16, 2021 (the “FLSA Collective Period”) and if you timely submit a FLSA Collective Consent Form.
The total maximum amount that Defendants will be required to pay under this Settlement is Five Million, Five Hundred Thousand Dollars ($5,500,000.00) (“Gross Settlement Amount”). The following amounts will be deducted from the Gross Settlement Amount if approved by the Court: The FLSA Net Settlement Fund of $500,000.00, the Class Representative Service Payment of up to $10,000.00, the Class Counsel Fees Payment up to $1,833,333.33 (one-third of the Gross Settlement Amount), the Class Counsel Litigation Expenses Payment up to $11,000.00, and the Settlement Administration Expenses estimated at $72,650.00. All of these payments are subject to Court approval. The amount remaining after making these deductions from the Gross Settlement Amount will be the Class Net Settlement Fund, estimated to be $3,073,016.67
Collectively, the payments you will receive from the Class Net Settlement Fund and the FLSA Net Settlement Fund are referred to as your Settlement Share.
If you do not exclude yourself from (“opt out” of) the Class Action Settlement, you will be a “Participating Class Member,” and you will receive a payment from the Class Net Settlement Fund. This payment is based on the number of workweeks you worked as a Class Member. It will be calculated by (a) dividing the Class Net Settlement Fund by the total number of workweeks worked by all Participating Class Members during the Class Period and (b) multiplying the result by each individual Participating Class Member’s workweeks during the Class Period.
If you are also an FLSA Collective Member and you complete and timely mail the FLSA Collective Consent Form, you will be an “Opt-In Plaintiff,” and you will receive a payment from the FLSA Net Settlement Fund. The Settlement Share for each Opt-In Plaintiff will be calculated by (a) dividing the FLSA Net Settlement Fund by the total number of workweeks worked by all Opt-In Plaintiffs during the FLSA Collective Period and (b) multiplying the result by each individual Opt-In Plaintiff’s workweeks worked during the FLSA Collective Period.
Disputes as to Workweeks. If you wish to dispute the workweeks allocated to you, you must submit your dispute in writing to the Settlement Administrator by no later than September 20, 2021. You must include documentation to support your calculations. All disputes about workweek calculations will be resolved by the Settlement Administrator.
Tax Treatment of Settlement Shares. Subject to approval by the Court, one-third (1/3) of each Settlement Share is in settlement of wage claims (the “Wage Portion”). The Wage Portion is subject to wage withholdings and shall be reported on IRS Form W-2. Subject to approval by the Court, one-third (1/3) of each Settlement Share is in settlement of claims for interest and one-third (1/3) of each Settlement Share is in settlement of claims for penalties allegedly due to employees (collectively the “Non-Wage Portion”). The Non-Wage Portion will not be subject to wage withholdings and will be reported on IRS Form 1099. Except as provided here, you will be responsible for paying all federal, state and local taxes associated with your Settlement Share.
Uncashed Settlement Share Checks. You must cash Settlement Share checks by no later than 180 days from the date of issuance. If your check is returned to the Settlement Administrator within 120 days, the Settlement Administrator will make all reasonable efforts to re-mail it to you at your correct address. If your Settlement Share check is not cashed within 120 days, the Settlement Administrator will also send you a notice informing you that unless the check is cashed in the next 60 days, it will expire and become non-negotiable, and offer to replace the check if it was lost or misplaced but not cashed. If the check remains uncashed by the expiration of the 60 day period after this notice, the funds from such uncashed checks will be redistributed as explained below.
Redistribution and Cy Pres Distribution of Uncashed Settlement Share Checks. If the uncashed Settlement Share checks equal or exceed $50,000, the Settlement Administrator shall make a second distribution of the uncashed funds on a pro rata basis to the Participating Class Members and Opt-In Plaintiffs who previously cashed their Settlement Share checks. In the event of such a redistribution, the additional settlement administration costs related to the redistribution will be deducted from the total amount of uncashed checks prior to the redistribution. If a check to a Participating Class Member or Opt-In Plaintiff is returned to the Settlement Administrator as undeliverable during the second distribution, the Settlement Administrator shall promptly attempt to obtain a valid mailing address by performing a skip trace search and, if another address is identified, shall mail the check to the newly identified address. If none is found, then said check shall revert to the cy pres recipient. If there are uncashed check funds remaining from the redistribution, then the amount will revert to cy pres.
If the value of the uncashed Settlement Share checks is less than this $50,000 threshold, the undistributed amount will be distributed cy pres equally between Pierce County Catholic Community Services and the Legal Foundation of Washington. The Participating Class Members and Opt-In Plaintiffs who did not cash their checks will remain bound by the Settlement.
To receive a payment from the Class Action Settlement, you don’t have to do anything. If the Court approves the Class Action Settlement, you will automatically become a Participating Class Member and receive a payment from the Class Net Settlement Fund.
The FLSA Collective Action is different than the Class Action. Federal law requires that you opt in to the FLSA Collective Action to participate and receive a payment. If you are a FLSA Collective Member, to receive a payment from the FLSA Net Settlement Fund, you must complete the FLSA Collective Consent Form and mail it to the Settlement Administrator by no later than September 20, 2021.
Not all Class Members are FLSA Collective Members. Because of differences in state and federal law, the Class Period begins on April 9, 2015, while the FLSA Collective Period begins on April 9, 2016, so Class Members who were not employed in covered positions after April 9, 2016 cannot be FLSA Collective Members.
Attorneys for the Plaintiff and the Class/FLSA Collective
TERRELL MARSHALL LAW GROUP PLLC
Beth E. Terrell, WSBA #26759
Toby J. Marshall, WSBA #32723
936 North 34th Street, Suite 300
Seattle, WA 98103-8869
Telephone: (206) 816-6603
Fax: (206) 319-5450
SCHNEIDER WALLACE COTTRELL KONECKY LLP
Carolyn H. Cottrell, CA Bar # 166977
Ori Edelstein, CA Bar # 268145
Pro Hac Vice
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Fax: (415) 421-7105
SCHNEIDER WALLACE COTTRELL KONECKY LLP
William M. Hogg, TX Bar # 24087733
Pro Hac Vice
3700 Buffalo Speedway, Suite 960
Houston, TX 77098
Telephone: (713) 338-2560
Fax: (866) 505-8036
Attorneys for Defendants
Donald L. Samuels, WSBA #56214
1401 Lawrence Street, Suite 2300
Denver, CO 80202
Telephone: (303) 572-9300
Jessica M. Andrade, WSBA #39297
1000 2nd Avenue, Suite 3500
Seattle, WA 98104
Telephone: (206) 393-5400
Facsimile: (206) 393-5401
The Court has decided that the firms Terrell, Marshall Law Group PLLC and Schneider Wallace Cottrell Konecky LLP are qualified to represent you and all other Class Members and FLSA Collective Members simultaneously in this Settlement. You do not need to hire your own attorney because Class Counsel is working on your behalf. But, if you want your own attorney, you may hire one at your own cost.
The purpose of this website is to inform you of the proposed settlement and of your options. Each option has its consequences, which you should understand before making your decision. Your rights regarding each option, and the steps you must take to select each option, are summarized below.
Important Notice: Defendants will not retaliate against you in any way for either participating or not participating in this Settlement.
PLEASE PAY CLOSE ATTENTION because doing nothing will have different consequences for you as it relates to the Settlement of the Class Action and the FLSA Collective Action. For the Class Action, if you do nothing, you will receive money from the Class Net Settlement Fund and will be bound by the Release of Class Action Claims. For the FLSA Collective Action, if you do nothing, you will not receive money from the FLSA Net Settlement Fund and will not be bound by the Release of FLSA Collective Action Claims.
If you do not want to participate as a member of the Class Action, then you may “opt out” in the manner described in Section 11, “How do I opt out or exclude myself from this settlement,” which will remove you from the Class Action. If the Court grants final approval of the settlement, you will not receive a Settlement Share and you will not give up the right to sue Defendants and the Released Parties for the Release of Claims by Participating Class Members as defined in Section 13.
Participate in the FLSA Collective Net Settlement Fund by Opting In. If you want to participate in the FLSA Collective Net Settlement Fund and receive a Settlement Share under the FLSA Collective Action Settlement, then you must timely complete and mail the FLSA Collective Consent Form to the Settlement Administrator as described in Section 8.
You may file a legal objection to any aspect of the proposed settlement, including the amount of fees requested by Class Counsel. You can object to the Class Action Settlement or the FLSA Collective Action Settlement. If you want to object to the Class Action Settlement, then you must not opt out of the Class Action Settlement. And if you want to object to the FLSA Collective Action Settlement, then you must opt in by timely submitting a FLSA Collective Consent Form.
The procedures for opting out of the Class Action or objecting to either or both the Class Action Settlement and FLSA Collective Action Settlement are set forth in Section 11, “How do I opt out or exclude myself from the Settlement?” and Section 12, “How do I object to the Settlement?”.
If you who wish to object to the Settlement or any aspect of it, including Class Counsel Fees Payment, Class Counsel Litigation Expenses Payment, or the Class Representative Service Payments, you may do so, either in writing or orally at the final approval hearing. Objections in writing must be submitted to the Settlement Administrator with copies to the Parties’ Counsel and postmarked no later than September 20, 2021. Objections must set forth the factual and legal grounds for the objection. If you make a timely objection, you are entitled, but are not required, to be heard regarding your objection at the final approval hearing either by you personally appearing or by your own attorney appearing for you.
If you do not submit a timely objection, you will be deemed to have waived any objection and will be foreclosed from making any objection (whether by appeal or otherwise) to the Settlement, unless otherwise excused by the Court upon a showing of good cause. If you file a valid Request for Exclusion as provided in Section 11 above, you will have no ability to comment on or object to the Settlement.
If the proposed Settlement is approved by the Court, a Final Judgment will be entered by the Court. All Class Members who do not opt out of the Settlement will be bound by the Court’s Final Judgment and will release Defendants and the Released Parties from the Release of Claims by Participating Class Members. The Release of Claims by Participating Class Members provides as follows:
Release of Claims by Participating Class Members. As of the Effective Date, Participating Class Members will fully and finally release and discharge Defendants and the Released Parties from any and all state or local claims, obligations, demands, rights, actions, causes of action and liabilities, whether known or unknown, that were alleged or that reasonably could have been alleged based on the facts alleged in the Complaint, including claims for unpaid overtime wages, unpaid wages, minimum wage violations, meal period violations, rest period violations, failure to pay wages at termination, restitution, penalties, interest, liquidated damages, double damages, treble damages, exemplary damages, attorneys’ fees, costs, disbursements and expenses, including without limitation claims under RCW 19.52.020, RCW 49.12.010, RCW 49.12.020, RCW 49.12.050, RCW 49.12.150, RCW 49.12.170, RCW 49.46.020, RCW 49.46.030, RCW 49.46.090, RCW 49.46.130, RCW 49.48.010, RCW 49.48.030, RCW 49.52.050, RCW 49.52.070, WAC 296-126-023, WAC 296-126-092, WAC 296-128-010, WAC 296-126-040 and claims for violation of the Washington Consumer Protection Act, RCW 19.86.
If the proposed Settlement is approved by the Court, a Final Judgment will be entered by the Court.
All FLSA Collective Members who are Opt-In Plaintiffs will be bound by the Court’s Final Judgment and will also release Defendants and the Released Parties from the Release of Claims by Opt-In Plaintiffs which is an additional release to the Release of Claims by Participating Class Members discussed above. The Release of Claims by Opt-In Plaintiffs provides as follows:
Release of Claims by Opt-In Plaintiffs. As of the Effective Date, Opt-in Plaintiffs shall fully and finally release and discharge Defendants and the Released Parties from all FLSA claims, whether known or unknown, that were alleged or that reasonably could have been alleged based on the facts alleged in the Complaint.
The Effective Date is the date the Settlement is approved by the Court and the Final Judgment becomes final as defined in the Settlement Agreement.
“Released Parties” means Defendants, their parents, predecessors, successors, all affiliates, subsidiaries, and their respective officers, directors, agents, employees, and stockholders.
The attorneys for the Class and FLSA Collective will be paid from the Gross Settlement Fund. Subject to Court approval, Class Counsel shall be paid an amount not to exceed one-third of the Gross Settlement Fund ($1,833,333.33) in fees and up to $11,000.00 in litigation costs. The Plaintiff will also be paid, subject to Court approval, an amount not to exceed $10,000, as an enhancement for the initiation of and prosecution of this case, the risks undertaken for the payment of costs in the event this case had been lost, and a general release of all claims.
The Court will hold a final approval hearing (also called a fairness hearing) to decide whether to finally approve the Settlement. The hearing will be on October 19, 2021 in Courtroom A at the United States Courthouse, which is located at 1717 Pacific Avenue, Tacoma, WA 98402. The hearing may be moved to a different date or time without additional notice.
At the hearing, the Court will consider whether the settlement is fair, reasonable and adequate. If you have filed a timely objection, the Court will consider it, and you may choose to speak at the hearing. The Court will decide how much to pay (1) the Settlement Administrator for settlement administrations costs, (2) the Plaintiff for her role as the Class Representative, and (3) Class Counsel for attorneys’ fees and costs. After the hearing, the court will decide whether to approve the settlement. We do not know how long the Court’s decision will take.
You do not need to go to the hearing. Class Counsel and Defendants’ lawyers will answer any questions the Court may have. But you are welcome to come at your own expense. If you send an objection, you don’t have to go to court to talk about it. As long as you mailed your objection on time, the Court will consider it. If you have filed a timely objection, you may pay another lawyer at your own expense to attend the hearing and appear on your behalf, but it is not required.
IF YOU NEED MORE INFORMATION OR HAVE ANY QUESTIONS, you may contact Class Counsel, or the Settlement Administrator toll-free number. Please refer to the Etcheverry v. Franciscan Health System Class and Collective Action Settlement.
Etcheverry v. FHS Settlement Administrator
c/o Settlement Services, Inc.
PO Box 10269
Tallahassee, FL 32302-2269
Phone: (833) 594-2008
This website, contains only a summary of the Notice. A more detailed Settlement Agreement contains the complete terms of the Settlement, and is on file with the Court, where it is available for your review. For more detailed information, you may refer to the underlying documents and papers on file with the Court at United States District Court Western District of Washington, 700 Stewart Street, Suite 2310, Seattle, WA 98101, from 7:00 a.m. to 5:00 p.m., Monday through Friday, or may ask for a free copy from Class Counsel.
PLEASE DO NOT TELEPHONE THE COURT FOR INFORMATION ABOUT THIS SETTLEMENT.
CONSENT TO JOIN TO FAIR LABOR STANDARDS ACT Form
CHANGE OF ADDRESS
If you change your address or phone number, please contact the Settlement Administrator at:
Etcheverry v. FHS Settlement Administrator
c/o Settlement Services, Inc.
PO Box 10269
Tallahassee, FL 32302-2269
Phone: (833) 594-2008
07/21/21 Notice Dissemination Date
09/27/21 Postmark Deadline for Consent to Join/Opt-In Forms
09/27/21 Postmark Deadline for Opt-Out Requests
09/27/21 Postmark Deadline for Objections
10/19/21 Final Approval Hearing