How conditional certification works in FLSA unpaid overtime lawsuits

A federal court in Louisiana recently certified a case as a collective action.  Murillo v. Berry Bros. General Contractors, Inc., No. 6:18-cv-1434 (W.D.La., Sept, 23, 2019). The Murillo case provides a good illustration of how the certification process works in overtime cases.  Murillo involved a lawsuit filed under the Fair Labor Standards Act (“FLSA”) against the defendant Berry Bros. for allegations that the defendant filed to pay him, and others similarly situated, overtime. The defendant is a labor contractor who provides many types of oilfield and maritime construction services such as fabrication services, civil and mechanical installation, electrical and instrumentation services, marine services, pipeline installation, and dry rock services. The plaintiff was employed as a mechanic at the defendant’s Pecos, Texas facility providing fabrication services. The plaintiff alleged that he was paid a base hourly rate and was paid 1.5 times the hourly rate for hours worked over 40. The defendant also paid “additional pay,” which was not included in the workers’ overtime rates of pay. Accordingly, because the defendant did not include this additional pay into the overtime pay calculations, the FLSA was violated.

The plaintiff sought to have the proposed class encompass: 

“All non-exempt hourly workers, such as mechanics, equipment operators, drivers, pipefitters, welders, electricians, cement and concrete workers, and other laborers, employed by Berry Bros. in the United States over the last three years whose regular rate of pay failed to include Additional Pay beyond their base hourly rate.” 

The FLSA allows workers to sue collectively on behalf of themselves and those similarly situated, which permits the plaintiff to “send a court-approved written notice to employees, who become parties to [the] collective action only by filing written consent with the court.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013). Although the Fifth Circuit has declined to adopt a specific test to determine when a court should conditionally certify a class, the majority of courts within this circuit have adopted the two-stage approach articulated in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987).

Step. 1: Notice Stage

At the notice stage, the district court “determines whether the putative class members’ claims are sufficiently similar to send notice of the action to possible members of the class.” Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir.2010). If the court finds the class members are similarly situated, then conditional certification is granted and the plaintiff will be given the opportunity to send notice to potential class members. Id. 

Step 2: Decertification stage

After the class members have opted in and discovery is complete, the defendant may then file a decertification motion asking the court to reassess whether the class members are similarly situated. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir.1995). At that point, the Court will fully evaluate the merits of the class certification.

In this case, the Court found that the potential class members were compensated the same way as the plaintiff, thus satisfying the first step, the notice stage. With regards to the notice the plaintiff proposed to send out, the Court ordered that certain requirements be met prior to the notice being formally sent out, one being that the plaintiff must omit certain language. The defendant objected to certain language in the notice, with the plaintiff stating they were unopposed. As such, the Court ordered that this language be removed prior to sending out the notice.

Conditional certification in overtime cases is a powerful tool that workers can use because it allows one person to file suit and sue on behalf of all others who were paid the same way, and thus have the same overtime claims, agains the employer.  The ability to be able to certify a class and then send out notice to those potential class members allows many people to join the lawsuit who otherwise might not have pursued their claims individually. If you are an oilfield worker who has been denied overtime pay, consider speaking with an experienced attorney today to learn your rights. Josh Borsellino is a FLSA attorney who fights for the rights of workers. He works on a contingency fee basis meaning that you owe him nothing unless there is a recovery. Call him today at 817.908.9861 or 432.242.7118. 

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