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Boykin v. Anadarko Petroleum Corp.

United States District Court, D. Colorado

March 21, 2018

BOYD BOYKIN, Plaintiff,
v.
ANADARKO PETROLEUM CORPORATION, Defendant.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR CONDITIONAL CERTIFICATION

          MARCIA S. KRIEGER CHIEF UNITED STATES DISTRICT JUDGE.

         THIS 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 (# 26).

         FACTS

         The 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.

         Mr. 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.

         ANALYSIS

         A. Scope of Notice

         Under 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.

         Among 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).

         At the 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).

         Anadarko 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 Boykin.”

         The 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.[1] 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.

         Accordingly, 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.

         B. ...


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