A group of oilfield workers won a favorable ruling in an overtime lawsuit in federal court in Texas. The plaintiff, a solids control technician, individually and on behalf of those similarly situated, brought a putative collection action under the Fair Labor Standards Act, 28 U.S.C. § 206, et seq. (“FLSA”), to recover minimum wages, overtime pay, liquidated damages, attorneys’ fees, and costs. Cervantez v. TDT Consulting, LLC, No. 3:18-cv-2547-S-BN (N.D. Tex., July 22, 2019). The plaintiff moved for conditional certification, which the defendant opposed. The case was referred to the U.S. Magistrate Judge, who recommended overruling the Defendant’s objection and granting the plaintiff’s motion to conditionally certify.
The plaintiff alleged that the defendant employs approximately 20-25 other solids control technicians and staffs these workers as consultants with other businesses “for drilling fluids, waste management, solids control, under balance drilling, and managed pressure drilling in the oil and gas industry.” Id. According to the plaintiff, the job duties involved processing the cuttings that come out of the ground during the drilling process at oil rigs. The plaintiff alleged that he and others were required to use the defendant’s tools and equipment to remove, clean, measure, load, and transport cuttings during the drilling process. These day-to-day activities were very labor intensive. The plaintiffs alleged they were paid a daily rate of $350, regardless of how many hours they worked, which was often over 12 hours a day for up to 14 days in a row. The plaintiffs asserted that they were misclassified as independent contractors instead of employees.
In evaluating a conditional certification, the FLSA provides:
“An action … may be maintained … by any one or more employees for and on behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b).
Unlike class actions brought under Federal Rule of Civil Procedure 23, classes under Section 216(b) are opt-in classes, requiring any employee wishing to become a party to the action to “opt in” (rather than “opt out”) by filing his consent with the court in which the action is brought. There is a two-stage certification process consisting of a notice and certificate stage. During the notification stage:
“the plaintiff moves for conditional certification of his or her collective action. The district court then decides, usually based on the pleadings and affidavits of the parties, whether to provide notice to fellow employees who may be similarly situated to the named plaintiff, thereby conditionally certifying a collective action.”
At the certification stage, the Court determines whether the class should be maintained through trial. See Mooney, 54 F.3d at 1214. Because the plaintiffs seeking conditional certification need not identify other hypothetical collective action members, the stage one standard is considered to be “fairly lenient.” Portillo, 662 F. App’x at 282. The decision whether to conditionally certify “lends itself to a case-by-case basis,” but the Court typically grants certification. Id. (quoting Mooney, 54 F.3d at 1214). Once conditional certification is granted, “notice of the action should be given to potential class members,” allowing them the opportunity to “opt-in” to the collective action. Id. (quoting Mooney, 54 F.3d at 1214); 29 U.S.C. § 216(b).
The plaintiffs relied on the following factors to prove that notice should be sent to all the similarly situated class members because they: have the same title; perform the same tasks of “removing, cleaning, measuring, loading, and transporting cuttings, as well as maintaining and cleaning the equipment used to remove the cuttings during the drilling process”; were all “responsible for maintaining [Defendants] solid control equipment, the rigging up and out of company equipment at the client’s wellsite/jobsite, dewatering, and centrifuge support”; all “worked twelve (12) or more hours in a single day for a period of up to fourteen (14) consecutive days in a row” for a daily rate of $350; were not compensated for “any hours worked in excess of forty (40) per week — including time spent driving,” despite regularly working more than forty hours in single workweek; and were all “not paid at the correct rate of one-and-one-half times their regular rate under the FLSA because of the defendant’s common plan to misclassifing solids control technicians as independent contractors instead of employees.” Cervantez v. TDT Consulting, LLC, No. 3:18-cv-2547-S-BN (N.D. Tex., July 22, 2019).
The magistrate judge found that the plaintiff had satisfied the lenient standard of the conditional certification process, and recommended certification of plaintiff’s proposed class. The magistrate judge further recommended granting the plaintiff’s request to distribute the Notice through mail, email, text message, posting at the workplace, posting online at the noted website, and inclusion in current employee’s paychecks. And the magistrate recommended that the Court grant Cervantez’s request potential opt-in plaintiffs be afforded the opportunity to electronically sign their consent forms from the proposed website. The District Court, following objections from the defendant, overruled them and adopted the Magistrate’s recommendations.
Because of the court’s ruling, members of the proposed class will receive notice of the lawsuit and be advised of their ability to join it. This case illustrates the power that one individual can have to seek overtime pay on behalf of a large group of workers for overtime pay. If you and your co-workers have been denied overtime pay, contact an experienced overtime attorney today. Josh Borsellino focuses on representing oilfield workers for overtime claims. For a free evaluation of your overtime case, call Josh at 817.908.9861 or 432.242.7118.
