When an overtime lawsuit is filed as a class action (which, when filed under the federal law known as the Fair Labor Standards Act, is known as a collective action), one of the most important motions that is filed by the plaintiff is a motion for conditional certification. Through this motion, the plaintiff is seeking an order from the court granting the plaintiff permission to send notice to other similarly situated individuals who have also experienced the same unfair treatment as the plaintiff. To understand how conditional certification works, it is best to examine a recent decision from the Southern District of Texas and see how the court addressed the conditional certification motion.
In Tuggle v. Rockwater Energy Sols., Inc., No. H-18-4746 (S.D. Tex. Dec. 3, 2019), the plaintiff filed suit individually and on behalf of all others similarly situated seeking recovery for his unpaid overtime. He sought to conditionally certify and send notice to the following group of people:
“All flowback operators who worked for Rockwater during the past [three] years who were classified as independent contractors and paid a day-rate with no overtime.”
In response, the defendant asserted that the plaintiff was not similarly situated to the other class members. In order to obtain conditional certification, the plaintiff had to show three things:
- There is a reasonable basis for crediting the assertions that aggrieved individuals exist;
Here, the plaintiff only had to show that it is reasonable to believe that other employees of the defendant have been subject to the same unlawful policy or plan. Based on declarations filed by the plaintiff and another opt-in plaintiff, which stated that they regularly worked more than 40 hours per week, did not receive overtime, and were paid a day-rate, the court said that the plaintiff met this burden.
- Those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted; and
Here, the plaintiff had to show that the putative class members were all affected by a common policy, plan, or practice. McKnight, 756 F. Supp. 2d at 803-04. However, it is important to note that it is not a requirement that the class members be identical in order to meet this requirement. Courts have previously held that “if there is a reasonable basis to conclude the the same policy applies to multiple locations of a single company, certification is appropriate.” Heeg v. Adams Harris, Inc., 907 F. Supp. 2d 856, 863 (S.D. Tex. 2012).
The plaintiff presented declarations of individuals who performed the same general duties and regularly worked more than 40 hours per week without receiving overtime. They all declared that they know other individuals experienced the same treatment as well. The defendant argued that one opt-in plaintiff was not similarly situated to all day-rate blowback contractors because he only worked at two well sites. However, the court said that “a plaintiff need only provide substantial allegations that class members were victims of a single, decision, policy or plan.” Tamez v. BHP Billiton Petroleum (Americas), Inc., No. 5:15-CV-330-RP, 2015 WL 7075971, at *3 (W.D. Tex. Oct. 5, 2015).
Lastly, the defendant argued that some contractors were paid hourly, which meant they were not similarly situated. The court said that this inquiry is not relevant to the claims at issue, as only day-rate contractors were included in the class. Based on the foregoing, the court concluded that the plaintiff sufficiently alleged that a common practice affected the putative class members.
- Those individuals want to opt in to the lawsuit.
This element required a showing that there is at least some interest to opt-in to the lawsuit. The Court found that since the lawsuit was filed, several individuals have filled out a notice of consent to join form, which, therefore, easily meets this requirement. Thus, the Court concluded that under the lenient standard for conditional certification, the Court recommended certifying the case.
As one can imagine, if one worker files a lawsuit for unpaid overtime, the chances that other workers have also experienced the same unpaid overtime issues is quite high, especially in the oil and gas industry given the significant amount of oilfield workers who perform the same tasks. If you are an oilfield worker and you believe you may have been denied overtime pay, consider speaking with an attorney today. Josh Borsellino is a FLSA attorney that works hard to recover your unpaid overtime. 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 for a free consultation.
