Court Exhibit (Case 1:17-cv-06350, Doc. 36-1, 86 pages)

The Judges

Hon. Charles P. Sifton,
U.S. District Judge, E.D.N.Y.: decided the 2009 Gayle ruling.

Hon. Nicholas G. Garaufis,
U.S. District Judge, E.D.N.Y.: entered the 2012 Gayle judgment.

Hon. Marilyn D. Go,
U.S. Magistrate Judge, E.D.N.Y.: ordered the deposition on the affidavits.

Hon. Pamela K. Chen and Hon. Peggy Kuo,
E.D.N.Y.: assigned to Case 1:17-cv-06350.

Hon. Robert A. Katzmann,
Chief Judge, Second Circuit: his court received the 2016 judicial complaints.

The Attorneys

Jonathan A. Bernstein, Levy Davis & Maher.

Summary

• 1999 and 2014: Two New York ALJs ruled our nurses are independent contractors.
• 2010: The Department of Labor reopened the issue based on a license we had held since 1992.
• 2017: The Appeal Board reversed the ALJ rulings, and we appealed.
• Federal case: In Gayle, the federal courts applied a different law, the FLSA, and reached a different result.

1. How Our Nurses Work
Our nurses are supervised by doctors, provide their own transportation and supplies, carry their own insurance, negotiate their own rates, and are free to work for other agencies.

2. 1999: Ruled Independent Contractors
After a full hearing, an ALJ ruled in our favor. The Department of Labor never appealed.

3. 2010: The Question Reopened
The Department cited “new information”: our home health license. That license was approved in 1992, seven years before the 1999 hearing.

4. 2014: A Second Judge Agrees
A second ALJ found that the agency operated the same way as in 1999.

5. 2017: The Appeal
The Appeal Board reversed both ALJs without addressing collateral estoppel. We appealed to the Appellate Division, Third Department.

6. The Federal Case
In Gayle v. Harry’s Nurses Registry (07 CV 4672), the federal courts applied the FLSA and reached a different result. The Supreme Court declined review in 2015.

The plaintiffs’ attorney admitted he dropped the New York state-law claim:

He explained why: New York’s test for employee versus independent contractor “was not the same as the FLSA distinction,” and he feared state law might hurt his case.

In other words, the nurses’ own attorney avoided New York law, the same law under which two New York judges ruled in our favor.

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Court Exhibit (Case 1:17-cv-06350, Doc. 36-1, 86 pages)

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Gayle v. Harry’s Nurses Registry, Inc. et al, 1_07-cv-04672, No. 274-1 (E.D.N.Y. Jan. 11, 2019) (1)999

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Part-2

Conclusion
Two New York judges, after full hearings, found that our nurses are independent contractors. We stand by that position.