Defendants in overtime pay collective actions sometimes seek to take discovery before a motion to certify can be ruled on. A court in Ohio recently rejected an oilfield company’s efforts to stay the plaintiffs’ motion to certify. Johnson v. Gulfport Energy Corporation involved two related cases, in which plaintiffs alleged that Gulfport violated the FLSA and Ohio employment law. In LeFort, the plaintiff sought to certify a class of night oilfield operators who allegedly worked for Gulfport more than 40 hours per week, and whom Gulfport purportedly misclassified as independent contractors and paid a daily rate with no overtime compensation, in violation of the FLSA and Ohio law. In Johnson, three of the night operators who filed consents to join the putative collective action class in LeFort, allege that Gulfport, along with the contractor that assigned Plaintiffs to work at Gulfport, Defendant Platinum Energy Partners, LLC, (“Platinum”), retaliated against them in violation of the FLSA and Ohio law by terminating them after they joined the putative class.
Gulfport asked the court to stay a ruling on the motion for conditional certification until discovery resolved the issue of whether either defendant (or both defendants) was an “employer” of the workers under the FLSA. Gulfport sought to take discovery on the employer and retaliation issues. Gulfport claimed that this limited discovery would streamline the case. Plaintiffs in both cases opposed the motion to stay. The court refused to stay a ruling on the motion to certify, stating that “In this district, conditional certification is regularly sought, and granted, prior to discovery.” The court reasoned that “allowing discovery would presumably always lead to more informed briefing in FLSA actions, yet district courts traditionally conduct a two-phase inquiry, with the first phase taking place prior to discovery.” The Court further found that bifurcated discovery on the employer and retaliation issues would be more cumbersome, and thus denied Gulfport’s request. The Court accepted the plaintiffs’ argument that bifurcation would “likely caus[e] a new source of contention between the parties. . . about whether information requested during discovery goes to the merits of the class issue.” As such, the Court denied the defendant’s request but allowed it 28 days to respond to the motion to certify. This case illustrates that motions to certify in overtime pay cases are typically decided without discovery, and a defendant’s efforts to obtain discovery or otherwise delay such motions usually fail.
About the author: Josh Borsellino is a Texas-based attorney who represents workers on claims for unpaid overtime. If you have questions about overtime, call Josh at 817.908.9861 or complete this form for a free evaluation of your overtime pay issue.