United States District Court, D. Colorado
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART MOTION FOR CONDITIONAL CERTIFICATION
S. KRIEGER CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court pursuant to the
Plaintiff's (“Mr. Boykin”) Motion For
Conditional Certification (# 24), the
Defendant's (“Anadarko”) response (#
25), and Mr. Boykin's reply (#
Court summarizes the pertinent facts here and elaborates
below. According to the Complaint (# 1), Mr.
Boykin was employed by Anadarko as a Rig Welder. He alleges
that Anadarko improperly classified him and other Rig Welders
as “independent contractors, ” and proceeded to
pay them only straight-time wages, even when they worked in
excess of 40 hours per week. Thus, Mr. Boykin alleges that
Anadarko violated the provisions of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 207.
Boykin seeks to pursue this matter as an FLSA collective
action under 29 U.S.C. § 216(b). In the instant motion,
he seeks an order from the Court “certifying a class of
Rig Welders, ” and authorizing issuance of notice and
consent forms to affected employees, allowing them to opt
into this lawsuit.
Scope of Notice
the FLSA, an action to recover unpaid overtime compensation
may be brought by “any one or more employees for and in
behalf of himself or themselves and other employees similarly
situated.” However, the statute also provides that
“[n]o employee shall be a party plaintiff to any such
action unless he gives his consent in writing to become such
a party.” 29 U.S.C. § 216(b). These two provisions
authorize what has come to be known as a “collective
action, ” an animal quite distinct from its more
familiar cousin, the class action under Fed.R.Civ.P. 23.
the prominent differences between the FLSA collective action
and a Rule 23 class action is the initial issue of
“certification.” In class actions, the class
certification stage is significant, as it tends to define the
shape of the ensuing case. By contrast, the certification
step in the FLSA collective action context has a “sole
consequence” of minimal significance: it defines only
whether notices about the litigation and consent forms are
sent out to potentially-affected employees. Tyson Foods,
Inc. v. Bouapheakeo, 136 S.Ct. 1036, 1043 (2016).
notice stage, the Court limits its analysis to determining
which individuals might be “similarly-situated”
to Mr. Boykin, such that they should receive notice about
this action and the opportunity to opt into it. This early in
the litigation, the inquiry is not particularly searching:
Mr. Boykin need only provide “substantial allegations
that the [individuals sought to be noticed] were together the
victims of a single decision, policy, or plan” relating
to inappropriate overtime compensation. Thiessen v.
General Electric Capital Corp., 267 F.3d 1095, 1102-03
(10th Cir. 2001).
here argues that the true circumstances are far more complex
than Mr. Boykin alleges. Relying on various affidavits,
Anadarko explains that it hires welders like Mr. Boykin
through various “third-party service companies.”
On some projects, Anadarko's arrangement with a given
service company is a “turnkey bid, ” by which
Anadarko agrees to pay a single, flat price for completion of
a given project to the service company, and the service
company is responsible for allocating that total contract
price among the laborers who perform the work on that
project. On other projects, Anadarko enters into a
“time and materials” contract with service
companies, by which the service companies agree to provide
laborers to work at specified hourly rate. (Some such
contracts specify straight-time and overtime rates; others
simply express the straight-time rate.) Anadarko states that,
in such circumstances, the service company bills Anadarko for
a particular sum and the service company allocates that
payment to laborers at the specified rates. In either
instance, Anadarko insists, it is the service company, not
Anadarko, that determines how many hours a laborer has worked
and what wages are due to him or her. Anadarko states that
all of Mr. Boykin's work was performed through a service
company called DT Bar Welding Services, Inc.
(“DT”), under a “time and materials”
contract. Anadarko states that “DT did, in fact, pay
some of its workers overtime, but apparently not
Court observes that the underlying facts of this case are
sharply and hotly disputed, and the Court does not intend to
attempt to resolve any of those disputes at this time. For
purposes of the certification issue, it is sufficient to
examine the two sides' factual contentions side-by-side,
adopt those that the other side has not disputed, and defer
to Mr. Boykin's version of the facts only where there is
a genuine conflict. By that metric, the Court finds, for
purposes of this Order, that Anadarko is the nominal employer
of all Rig Welders, as Mr. Boykin asserts. Mr. Boykin has not
disputed that Anadarko's contracts with the service
companies (Mr. Boykin refers to DT as a “payroll
process[or], ” but that distinction is not material) to
pay those welders according to various formulas. Mr.
Boykin's work with Anadarko occurred only with DT, and
although Mr. Boykin's affidavit speaks of conversations
he had with co-workers, he does not allege that those
co-workers were affiliated with any service companies other
than DT or on projects with different pay formulas.
Therefore, the Court assumes that Mr. Boykin's knowledge
of Anadarko's pay policies relate only to employees who
worked on projects in which DT was the service company. Mr.
Boykin states that he had conversations with other co-workers
who confirmed that they, too, were not paid overtime, but Mr.
Boykin has not disputed Anadarko's claims that other DT
welders were paid overtime. Thus, the Court cannot
say that all Rig Welders paid through DT were
victims of the same pay practices that Mr. Boykin alleges,
nor can the Court draw any assumptions about employees paid
by Anadarko through service companies other than DT. At most,
certification must be limited to those Rig Welders with DT
that were not paid overtime.
the Court finds that Mr. Boykin has made a substantial
showing warranting notice to “any Rig Welder, employed
by Anadarko through DT Bar Welding Services, Inc., who failed
to receive overtime pay for hours exceeding 40 in a
week.” The Court cannot say that Mr. Boykin has made a
substantial showing that any other Rig Welder employed by
Anadarko and paid through any other service company
necessarily experienced the same circumstances.