Fracturing Specialists are one of the most important jobs in the oil and gas industry. Frac specialists have a variety of job duties that can vary from company to company, including but not limited to fracking fluid chemical disclosures, wellborn integrity requirements, and air and water pollution prevention. Fracturing specialists are sometimes misclassified as exempt and denied overtime pay.  As a recent case demonstrates, fracturing specialists who have been misclassified as exempt may be entitled to recover their unpaid overtime against their current or former employee.

To demonstrate the extreme working hours for fracturing specialists, Plaintiffs in McDonald v. Gore Nitrogen Pumping Service, in their role as Fracturing Specialists and/or Frac Hands, filed a collective action in federal court in Oklahoma against the Defendant company. McDonald v. Gore Nitrogen Pumping Service, Case No. CIV-18-1010-G (W.D. OK). The Defendant provides a range of specialized oilfield services to clients in Oklahoma, Kansas, Texas, Arkansas, and Eastern Colorado. The Plaintiffs’ job for the Defendant included transporting, loading, unloading, rigging up, rigging down, and operating oilfield equipment at well sites for the Defendant’s customers. The Plaintiffs consistently worked well over 40 hours per week and were not compensated for their overtime, and thus alleged in their lawsuit that Defendant had violated the Fair Labor Standards Act (“FLSA”). The Plaintiffs stated that the Defendant made a policy of this practice – where they consistently overworked many similarly situated employees without overtime. Id. The Defendants filed a motion to dismiss the complaint by the Plaintiffs dismissing both the FLSA claim and the collective action allegations. The Court rejected the Defendant’s motion and allowed the case to go forward, which was a significant win for the Plaintiff workers. 

Under the FLSA, overtime pay of one and a half times the employee’s hourly rate is required for any hour worked over 40 hours in a week. See 29 U.S.C. § 207(a)(1). To state a claim for violation of the FLSA’s overtime pay requirements, Plaintiff must allege:

1. that Defendants are “employers” under the Act;
2. that Plaintiff is an “employee” under the Act;
3. that Defendants employed Plaintiff’s services;
4. that Plaintiff was required to work more than 40 hours in a single work week; and
5. that Plaintiff did not receive compensation at a rate of 1.5 times his normal hourly rate for the hours he worked over 40 in that week. See id.; Cooper v. Coil Chem., LLC, No. CIV-16-473-D, 2016 WL 7168235, at *2 (W.D. Okla. Dec. 8, 2016).

The FLSA permits an employee to bring an action for unpaid overtime wages “for and on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Thus, “[t]o state an FLSA collective action claim, a complaint must allege facts sufficient to create the plausible inference that there is a group of individuals similarly situated to Plaintiff.” See Smith v. Pizza Hut, Inc., No. 09-cv-01632-CMA-BNB, 2011 WL 2791331, at *5 (D. Colo. July 14, 2011).

Accordingly, the complaint need only contain facts sufficient to create a ‘plausible inference’ that members of the proposed employee group were victims of a single decision, policy or plan. See Cooper, 2016 WL 7168235, at *5. The Plaintiffs in McDonald allege that all the members were misclassified as exempt from overtime pay, paid on a salary basis and denied overtime for hours worked in excess of 40 hours per workweek. McDonald, Case No. CIV-18-1010-G (W.D. OK). The Court said that it is immaterial wether the class members were compensated under the same payment structure or what their job titles were. What matters is that the fundamental allegation that the Plaintiffs are not being compensated for overtime, which is common in all the FLSA plaintiffs’ claims. Interestingly enough, the Defendants did not point or identify any element of the FLSA requirements that the Plaintiffs had failed to adequately allege nor do they point to any authority suggesting that the Plaintiffs adequacy as a FLSA representative Plaintiff is relevant. This is indicative of the Defendant’s inability to properly classify the Plaintiffs and pay them their rightly earned payments.  

Being misclassified as exempt can have major implications for both an employer and an oilfield worker. If you believe that you have been misclassified and denied overtime pay, you should visit with an experienced overtime attorney to learn about your legal rights.  Josh Borsellino is an overtime attorney licensed in Texas that represents workers who have been illegally denied overtime pay because of their misclassification. Josh fights for the rights of workers that have been denied overtime pay. Josh accepts overtime cases on a contingency basis, meaning that he only gets paid if money is recovered from the company being sued. Josh provides free consultations for anyone with questions about overtime pay. He may be reached at 817.908.9861 or 432.242.7118.