Overtime cases filed under the FLSA may be brought individually or as a collective action, where the claimant seeks to pursue claims on behalf of other similarly situated workers. In collective cases, the plaintiff will ask the Court to certify the case as a collective action, require the defendant to disclose the names and contact information of all class members and authorize that notice of the lawsuit be sent to those class members. The Fifth Circuit has adopted a lenient standard for conditional certification of FLSA cases. A recent case from the Northern District of Texas demonstrates this lenient standard.
A former employee of Foundation Energy filed a collective action against the company, alleging he and others were denied overtime. According to the plaintiff, while he worked as a pumper for the company, he was classified an an independent contractor and paid a set rate for each well he serviced. He filed a motion to conditionally certify the case as a collective action.
Foundation argued that the plaintiff’s allegations lack competent evidentiary support. In his motion to certify, the plaintiff did not identify any other potential plaintiffs for this class certification. In addition, he did not provide a declaration from any other pumper or any other evidence involving wells he did not service. The Court rejected this argument, finding:
In past cases, courts have granted motions for notice and conditional certification with little evidentiary support, such as a single declaration from a single plaintiff. There is no need for a plaintiff to “identify and obtain preliminary support” from potential class members in order to give them notice. The burden at the notice stage is a lenient one because it is expected that only “minimal” evidence is available to the court. Though the court may later find that the putative class members and The plaintiff are not similarly situated, “notification at this stage, rather than after further discovery, may enable more efficient resolution of the underlying issues of the case.” The court thus concludes that The plaintiff has provided competent evidence for conditional certification at this stage.
Foundation further argued that the plaintiff’s evidence failed to establish that he and the members of the putative class are similarly situated. Foundation claimed that pumpers had different duties that can differ based on, for example, geographic location, and that its pumpers differ in their degree of control, relative investment, degree of opportunity for profit or loss, skill and initiative required to perform duties, and degree of permanency. The Court rejected this argument as well, finding that “the members of the putative class are (or were) all tasked with one primary objective regardless of geographic location: ensuring that Foundation’s wells continued to produce. This nexus, the existence of a single primary objective shared by [the plaintiff] and potential class members, is sufficient at stage one of the
Lastly, Foundation argued that the plaintiff has failed to show that other class members are interested in joining the suit. But the Court refused to accept this argument either, finding:
pumpers often work alone at remote well sites without cell phone reception or significant supervision, and they have little or no opportunity to interact with other pumpers with the possible exception of regional safety meetings…Other courts have noted that under such working conditions, e.g. solitary working conditions, remote work sites, no centralized office or official to report to, the requirement to show that other class members are interested in joining the suit before notice creates a “chicken and egg” problem…As such, courts often do not require a plaintiff working under such conditions to show, at the notice stage, that other particular class members are interested in joining the suit…Considering what the record shows about the circumstances of [the plaintiff’s’ employment, the court concludes that the plaintiff has met his burden to show that other class members are interested in opting into the suit at this stage.
The Court thus granted the plaintiff’s motion for conditional certification. This case shows that even evidence from a single claimant can be sufficient for a court to conditionally certify a collective action under the FLSA. If you have questions about whether you may be entitled to overtime pay, consult an experienced FLSA attorney as soon as possible. Josh Borsellino is an experienced overtime attorney. He is available for free consultations at 817.908.9861.