United States District Court, D. Colorado
KEVIN CLARK, on behalf of himself and all similarly situated persons, Plaintiff,
v.
STRAD ENERGY SERVICES, USA, LTD., a Colorado corporation, and STRAD OILFIELD SERVICES, INC., a Colorado corporation, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR APPROVAL OF
HOFFMAN-LAROCHE NOTICE
William J. Martínez United States District Judge.
Plaintiff
Kevin Clark (“Plaintiff”) brings this action
against Defendants Strad Energy Services, USA, LTD. And Strad
Oilfield Services, Inc. (together, “Strad” or
“Defendants”) for, among other things, violation
of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201 et seq. (ECF No. 31.)
Plaintiff's FLSA claim concerns Defendants' alleged
failure to properly compensate employees for overtime hours
worked. (Id. ¶¶ 17-25.)
Currently
before the Court is Plaintiff's Motion for Approval of a
Hoffman-La Roche Notice (“the Motion”).
(ECF No. 40.) Plaintiff seeks to have this matter
conditionally certified as a collective action under the FLSA
for certain current and former employees who worked for
either Defendant from May 22, 2014 to present. (Id.
at 5.) Defendants sought several extensions of time to file a
response to the Motion. Ultimately, the parties instead filed
a Joint Stipulation Regarding Plaintiff's Motion for
Approval of Hoffman-LaRoche Notice (“Joint
Stipulation”). (ECF No. 65.) At the Court's
request, the parties subsequently filed a revised Joint
Proposed FLSA Notice (“Revised Notice”). (ECF No.
66.) For the reasons explained below, Plaintiff's Motion,
as modified by the Revised Notice, is granted.
I.
BACKGROUND
The
following alleged facts are drawn from the Plaintiff's
Amended Complaint, the Motion, and the Joint Stipulation.
(ECF No. 31; ECF No. 40; ECF No. 65.)
Clark
alleges that he is a former employee of Strad as a field
service technician providing labor at locations in Colorado,
Montana, North Dakota, South Dakota, and Wyoming. (ECF No. 31
¶¶ 2, 5.) He claims that he was often required to
work more than forty hours per work week and/or twelve hours
per day, and did so, but was not compensated for
time-and-a-half for his overtime hours. (Id. ¶
6.) Plaintiff alleges four distinct practices that lead Strad
to allegedly undercompensate their employees: (1) failure to
compensate Clark for time “on-call” when he was
living away from home waiting for work to be assigned and was
restricted in his activities; (2) failure to properly
compensate Clark for travel time to and from remote sites;
(3) shifting hours in excess of sixteen hours to different
days of the week to avoid overtime; and (4) “fail[ing]
to include all of Plaintiff's compensation in calculation
of his overtime rate.” (Id. ¶¶
7-10.) For example, Clark alleges that from December 21-27,
2015, he received no compensation for at least fifty hours of
work and is owed at least $1, 650 in unpaid overtime for that
week. (Id. ¶ 11.) Clark also alleges that
“none of Strad's non-exempt employees were paid
properly for their time worked.” (Id. ¶
12.)
Clark
claims that the non-payment of overtime violated the FLSA
(id. ¶¶ 17-25), the Colorado Wage Act
(id. ¶¶ 26-31), the Colorado Minimum Wage
Act (id. ¶¶ 32-37); and the state overtime
and minimum wage laws of Montana, North Dakota, Pennsylvania,
South Dakota, and Utah (id. ¶¶
38-41).[1] He seeks to recover compensatory damages,
liquidated damages, statutory penalties as provided by law,
attorneys' fees, and costs. (Id. at 10.)
II.
LEGAL STANDARD
The
FLSA permits collective actions where the allegedly aggrieved
employees are “similarly situated.” 29 U.S.C.
§ 216(b). Whether employees are similarly situated is
judged in two stages: a preliminary or “notice
stage” (at issue here) and then a more searching,
substantive stage, usually after the close of discovery.
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,
1102-03, 1105 (10th Cir. 2001). At the notice stage, a
plaintiff requires “nothing more than substantial
allegations that the putative [collective action] members
were together the victims of a single decision, policy, or
plan.” Id. at 1102 (internal quotation marks
omitted); see also Boldozier v. Am. Family Mut. Ins.
Co., 375 F.Supp.2d 1089, 1092 (D. Colo. 2005) (applying
Thiessen). The standard for certification at this
stage is a lenient one. See Thiessen, 267 F.3d at
1103; Williams v. Sprint/United Management Co., 222
F.R.D. 483, 485 (D. Kan. 2004).
If a
plaintiff meets this standard, the Court may order the
defendant to provide contact information for employees that
may be eligible to participate in the collective action, and
may approve a form of notice to be sent to all of those
individuals. See Hoffmann-La Roche Inc. v. Sperling,
493 U.S. 165, 169-74 (1989). Such notice is usually required
because, unlike class actions under Federal Rule of Civil
Procedure 23, collective actions under the FLSA require a
party to opt in rather than opt out. See 29 U.S.C.
§ 216(b) (“No employee shall be a party plaintiff
to any [collective] action unless he gives his consent in
writing to become such a party and such consent is filed in
the court in which such action is brought.”). Obviously
current or former employees cannot opt in if they do not know
about the pending action.
III.
ANALYSIS
A.
Collective Action Certification
The
parties stipulate that Defendants' current or former
employees who worked in certain positions in the United
States from May 22, 2014 to present are similarly-situated
for purposes of FLSA conditional certification. (ECF No. 65
¶¶ 4-5.) In particular, Plaintiff seeks to certify
a class defined as: “All current and former Shop Hands,
Sit Hands, Solids Control Trainees, Field Service
Technicians, and Solids Control Technicians employed by Strad
Energy Services or Strad Oilfield Services at any time on or
after May 22, 2014.” (Id. ¶
5.)[2]
Given
Plaintiff's Motion and the parties' Joint Stipulation
and upon independent review, the Court finds that Plaintiff
has made allegations sufficient to meet the lenient standard
for conditional FLSA collective action certification. See
Thiessen, 267 F.3d at 1103. Plaintiff alleges that he
personally was not paid overtime, and that Defendant's
failed to pay any of their non-exempt employees properly for
time worked. (ECF No. 31 ΒΆΒΆ 6, 12.) These
allegations are sufficient to establish that the ...