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Hancock v. Lario Oil & Gas Company

United States District Court, D. Kansas

August 1, 2019

NATHAN HANCOCK, on behalf of himself and all others similarly situated Plaintiff,
LARIO OIL & GAS CO., Defendant.



         Plaintiff Nathan Hancock brings this putative collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), against Defendant Lario Oil & Gas Co., claiming violations of the FLSA's overtime pay requirements. Specifically, Plaintiff alleges that Defendant misclassified its employees as independent contractors in order to bypass FLSA overtime requirements. Plaintiff alleges that these employees, referred to as “company men, ” were paid a day rate for a twelve-hour shift and not paid overtime if they worked beyond twelve hours. This matter is before the Court on Plaintiff's Motion for Conditional Collective Action Certification and Notice (Doc. 11). For the reasons explained below, the Court grants Plaintiff's motion to conditionally certify. Specifically, the Court conditionally certifies the following class:

All oilfield workers who were or are employed by Defendant as a Wellsite/Drill Site Manager or “company man, ” and who were classified as independent contractors and paid a day rate at any time within the three years preceding the present date.

         The Court authorizes written notice to be sent to putative plaintiffs. However, the Court first directs the parties to confer, attempt to agree on a proper notice and consent-to-join form based on the Court's findings below, and resubmit the forms for the Court's approval. Finally, the Court grants Plaintiff's request for putative plaintiffs' names and contact information. The parties are directed to confer regarding a plan for distributing notice via an electronic medium and to inform the Court of this distribution plan.

         I. Legal Standard

         An action under the FLSA may be brought “against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”[1]Unlike a class action under Fed.R.Civ.P. 23, to participate in a FLSA collective action, all plaintiffs must “[give] [their] consent in writing to become such a part, ” and the consent must be “filed in the court in which such action is brought.”[2]

         Before notice is sent to putative plaintiffs to inform them of the pending action, the Court must conditionally certify the action as a collective action. The court may certify an opt-in collective action so long as the aggrieved employees are similarly situated.[3] Section 216(b) does not define “similarly situated.” The Tenth Circuit has approved an ad hoc case-by-case basis for determining whether employees are “similarly situated” for the purposes of § 216(b).[4] This involves a two-step inquiry.[5] The first step occurs at the “notice stage” of the proceedings. Here, the court determines if certification is proper for purposes of sending notice of the action to potential collective action members.[6] At this stage, the court “requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan.”[7] This standard is lenient[8] and typically results in conditional certification.[9] In reviewing a motion for conditional certification, the court does not weigh the evidence, resolve factual disputes, [10] or rule on the merits of plaintiffs' claims.[11] Generally, courts in this District have limited the scope of their review on a motion for conditional certification to the allegations in the plaintiffs' complaints and supporting affidavits.[12]

         The second step-requiring the court to apply a stricter standard to ensure that plaintiffs are actually similarly situated-comes after discovery is complete and is usually prompted by defendants filing a motion to decertify.[13]

         II. Background

         Plaintiff filed this action on March 13, 2019. The following facts are alleged in Plaintiff's Complaint and Memorandum in Support of his Motion for Conditional Certification.

         Defendant routinely hired company men at its various jobsites and classified these company men as independent contractors. The company men were paid a day rate-rather than a salary-which was intended to cover twelve hours per day, seven days per week for some temporary period. Plaintiff and the other company men often worked longer than twelve hours in a day. Though their expected work week was eighty-four hours, they were not paid overtime. They were also not paid overtime when they worked beyond those expected eighty-four hours. Defendant applied this uniform classification and compensation policy to all company men.

         Plaintiff seeks compensatory and liquidated damages under § 216(b) and interest, attorneys' fees, and costs allowed by § 216(b). The FLSA claim is the only basis on which Plaintiff seeks approval of a collective action.

         III. Conditional Certification

         Defendant does not oppose Plaintiff's Motion for Conditional Certification. Rather, Defendant requests that the Court limit the class to individuals engaged by Edwards Well Services (“EWS”). Defendant argues that the putative class identified by Plaintiff is not similarly situated because the class members were not Defendant's employees. Rather, the company men were employed by various staffing companies, including EWS, which contracted with Defendant to provide managers at well and drill sites. Defendant requests the Court look beyond Plaintiff's pleadings to an affidavit and sample contract demonstrating EWS's role in Plaintiff's employment.

         Defendant's argument requires the Court to decide whether Defendant is an employer under the FLSA. The FLSA defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee.”[14] Determining whether Defendant is the putative plaintiffs' employer is a fact-intensive inquiry requiring the Court to weigh evidence, an inquiry not appropriate at this initial stage.[15] As such, this challenge to conditional certification is premature.

         At the notice stage, with no discovery conducted, it is enough that Plaintiff has alleged that he and the putative class were employees of Defendant and subject to a single decision, policy, or plan-the day rate applicable to all company men. Plaintiff's Complaint, as supported by the declaration and exhibits, is a substantial allegation and therefore meets the threshold for sending notice to other putative plaintiffs. To the extent Defendant wishes to raise factual challenges to whether putative plaintiffs hired by various staffing companies are similarly situated, such challenges are appropriately raised at the stricter second stage of the conditional certification process,[16] after discovery is completed and the evidence is more fully developed. Possible defenses or justifications for decertification will be considered should Defendant file a motion for summary judgment or motion to decertify. Accordingly, Plaintiff's Motion for Conditional Certification is granted.

         IV. Notice to Putative Plaintiffs

         The benefits of a collective action “depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate.”[17] Plaintiff has submitted a proposed notice and consent-to-join form with his motion to conditionally certify. Defendant objects to Plaintiff's proposed notice letter on several grounds: (1) a failure to adequately articulate the nature of the lawsuit; (2) the appearance of judicial endorsement; (3) the potential burdens of joining the class, and (4) the method of distribution. The Court addresses these objections in turn.

         A. Nature of the Lawsuit

         First, Defendant objects to language in the proposed notice referring to the nature of this lawsuit as a “wage claim, ” arguing that such language is not specific enough to allow the class to understand the nature the lawsuit. Defendant asserts that the notice should make clear that the consent makes Defendant a “party-plaintiff” under 29 U.S.C. § 216(b). The Court finds, however, that the notice is clear as to the nature of the lawsuit. The notice letter states the case is brought under FLSA for unpaid overtime wages-the use of the term ”wage claim” is merely a simplification for the benefit of the prospective parties. “Under the FLSA, the Court has the power and duty to ensure that the notice is fair and accurate, but it should not alter plaintiff's proposed notice unless such alteration is necessary.”[18] The Court finds alternation is unnecessary here.

         Defendant also argues that Plaintiff has not properly articulated Defendant's position with regard to this litigation. Plaintiff has agreed to add language clarifying that “Lario claims it was not Hancock and potential plaintiffs' employer.” Plaintiff is directed to include this language in the notice. Defendant also asserts that the notice should include information about EWS or other staffing companies. As discussed above, the role of third-party staffing companies is not at issue at this initial notice stage. Accordingly, Plaintiff is not required to add language regarding EWS.

         B. ...

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