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Prim v. Ensign United States Drilling, Inc.

United States District Court, D. Colorado

August 24, 2017

MATTHEW PRIM, individually and on behalf of all others similarly situated, Plaintiff,


          PHILIP A. BRIMMER United States District Judge.

         The matter before the Court is the parties' Unopposed Motion for Approval of FLSA Settlement and Stipulation of Dismissal of Lawsuit with Prejudice [Docket No. 33]. Plaintiff and defendant request that the Court approve their settlement of plaintiff's claims brought pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.

         I. BACKGROUND

         On September 30, 2015, plaintiff filed his complaint, individually and on behalf of all others similarly situated, alleging that defendants violated the FLSA. Docket No. 1. Plaintiff was employed by defendant and worked in an oilfield as an hourly employee. Id. at 2, ¶ 7. Plaintiff and other employees received bonuses as a component of their compensation including “Safety Bonuses and/or Performance Bonuses.” Id., ¶ 8. Defendant excluded these bonuses from calculations of plaintiff's and other employees' regular rate of pay, and therefore failed to pay plaintiff and the putative class members overtime at the rate required by the FLSA. Id. at 2-3, ¶ 9.[1]

         On February 15, 2017, plaintiff filed the instant motion seeking approval of the settlement between the parties and dismissal of this lawsuit with prejudice. Docket No. 33.

         II. ANALYSIS

         In a suit by employees against their employer to recover back wages under the FLSA, the parties must present any proposed settlement to the district court for review and a determination of whether the settlement agreement is fair and reasonable. See Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350, 1353 (11th Cir. 1982). Requiring court approval of FLSA settlements effectuates the purpose of the statute, which is to “protect certain groups of the population from substandard wages and excessive hours . . . due to the unequal bargaining power as between employer and employee.” Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 706 (1945).

         A. Final Class Certification

         The FLSA provides that an employee or employees may bring an action “[on] behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Courts determine whether plaintiffs are “similarly situated” for purposes of FLSA collective action certification in two stages. Thiessen v. GE Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001). A court's initial certification comes at the notice stage, where courts use a fairly lenient standard to determine whether plaintiffs are similarly situated for purposes of sending notice to putative class members. Id. at 1102. In this case, plaintiff did not request initial certification. See Docket No. 24. After discovery, a court makes a final class certification using a stricter standard. See Thiessen, 267 F.3d at 1102-03. In order to approve a settlement prior to a final collective action ruling, “the Court must make some final class certification finding.” Whittington v. Taco Bell of Am., Inc., No. 10-cv-01884-KMT-MEH, 2013 WL 6022972, at *2 (D. Colo. Nov. 13, 2013) (citing Peterson v. Mortgage Sources, Corp., 2011 WL 3793963, at *4 (D. Kan. Aug. 25, 2011)).

         In deciding whether to certify a collective action, courts consider several factors, including: (1) the disparate factual and employment settings of individual plaintiffs; (2) various defenses available to defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations.[2] See Thiessen, 267 F.3d at 1103.

         Plaintiff's motion makes no reference to collective action certification, fails to provide any facts demonstrating the similarities of the proposed class, and does not discuss any of the factors the Court should consider in certifying a class. See Thiessen, 267 F.3d at 1103 (enumerating the relevant factors for certification of an opt-in class). Instead, plaintiff states that the parties dispute whether the class members are similarly situated. Docket No. 33 at 8. Accordingly, on April 14, 2017, the Court ordered plaintiff to file supplemental briefing with the Court addressing the propriety of some final class certification. Docket No. 37.

         On May 1, 2017, plaintiff filed supplemental briefing in support of the parties' motion for settlement approval. Docket No. 38. In the supplement, plaintiff argues that the Court should apply a more lenient “notice stage” standard in determining whether certification is appropriate. Id. at 5. Plaintiff claims that some certification is appropriate because “Ensign employed non-exempt hourly workers who it paid certain non-discretionary bonuses to, including safety and performance bonuses.” Id.

         As an initial matter, the Court disagrees that the notice stage standard should be applied to make some final class certification determination. If this were the case, there would be no need for the Court to consider class certification prior to approving a settlement if an initial notice had been approved. See Whittington, 2013 WL 6022972, at *3 (applying the Thiessen factors and discussing evidence discovered after the initial class certification was approved). Regardless, under either the notice stage standard or some heightened standard, plaintiff has not provided information sufficient to make any determination as to class certification.

         Plaintiff cites three items as evidence of defendant's policy of failing to incorporate certain non-discretionary bonuses to its employees. Docket No. 38 at 5-6. First, plaintiff points to the opt-in forms submitted by plaintiff and two other employees. Docket Nos. 1-1, 19, 20. The opt-in forms reference “unpaid overtime” but do not define the bonuses at issue or ...

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