United States District Court, D. Kansas
NATHAN HANCOCK, on behalf of himself and all others similarly situated Plaintiff,
LARIO OIL & GAS CO., Defendant.
MEMORANDUM AND ORDER
A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE
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
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.
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.
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.”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
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. 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). This involves a two-step
inquiry. 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. 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.” This standard is
lenient and typically results in conditional
certification. In reviewing a motion for conditional
certification, the court does not weigh the evidence, resolve
factual disputes,  or rule on the merits of plaintiffs'
claims. 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.
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
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.
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.
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.
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.
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.” 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. As such, this challenge
to conditional certification is premature.
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, 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.
Notice to Putative Plaintiffs
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.” 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.
Nature of the Lawsuit
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.” The Court finds alternation is
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.