United States District Court, D. Colorado
THAD LINDSAY, on behalf of himself and all similarly situated persons, Plaintiff,
v.
CUTTERS WIRELINE SERVICE, INC., a Utah corporation, MESA WIRELINE, LLC, a Delaware limited liability company, LONE WOLF WIRELINE, INC., a Utah corporation, WIRELINE SPECIALTIES, INC., a New Mexico corporation, CAPITAN CORPORATION, a Texas corporation, and CAPITAN WIRELINE, LLC, a Texas limited liability company, collectively d/b/a Cutters Wireline Group, Defendants.
ORDER
PHILIP
A. BRIMMER UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Plaintiff's Motion for
Approval of Hoffman-LaRoche Notice [Docket No. 27].
I.
BACKGROUND
This is
a wage and hours dispute. Plaintiff Thad Lindsay worked as a
wireline operator for defendant Cutters Wireline Service,
Inc. (“Cutters”). Docket No. 22 at 2, ¶ 2;
Docket No. 29-1 at 4, ¶ 20. Cutters is the parent
company of the other defendants. Docket No. 29-1 at 1, ¶
3. The president of Cutters is responsible for overseeing all
administrative and operational functions of all defendants.
Id. at 2, ¶ 4. Defendants provide wireline
services to oil and gas production companies in Colorado and
other states. Id. at 2, ¶ 5.
On June
14, 2017, plaintiff filed his complaint. Docket No. 1. The
complaint includes claims for violations of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201
et seq., claims for violations of state wage and
hours laws, and a breach of contract claim. Docket No. 1 at
6-9. Plaintiff brings his FLSA claim as a collective action
pursuant to 29 U.S.C. § 216(b). Docket No. 1 at 6,
¶ 21. The present motion requests that the Court
conditionally certify the collective action and approve the
proposed Notice of Collective Action (“Notice”)
to be disseminated to the members. Docket No. 27.
II.
ANALYSIS
A.
Conditional Certification
Plaintiff
asks the Court to conditionally certify the case as a
collective action pursuant to § 216(b) of the FLSA,
which provides in pertinent part:
Any employer who violates the provisions of . . . section 207
of this title shall be liable to the employee or employees
affected in the amount of . . . their unpaid overtime
compensation, . . . and in an additional equal amount as
liquidated damages. . . . An action to recover the liability
prescribed in [Section 207] may be maintained against any
employer . . . in any Federal . . . court of competent
jurisdiction by any one or more employees for and in
behalf of himself or themselves and other employees similarly
situated.
29 U.S.C. § 216(b) (emphasis added). There is a two-step
approach for determining whether plaintiffs are
“similarly situated” for purposes of FLSA
collective action certification. Thiessen v. GE Capital
Corp., 267 F.3d 1095, 1105 (10th Cir.
2001).[1] A court's initial certification comes
at the notice stage, where courts determine whether the
putative collective action members are similarly situated for
purposes of sending notice to putative members. Id.
at 1102. At this first stage, plaintiff is required to
provide “nothing more than substantial allegations that
the putative class members were together the victims of a
single decision, policy or plan.” Id.; see
also Stransky v. HealthONE of Denver, Inc., No.
11-cv-02888-WJM-MJW, 2012 WL 6548108, at *4 (D. Colo. Dec.
14, 2012). This is a “lenient” standard,
Baldozier v. Am. Family Mut. Ins. Co., 375 F.Supp.2d
1089, 1092 (D. Colo. 2005), “which typically results in
conditional certification of a representative class.”
Renfro v. Spartan Computer Servs., Inc., 243 F.R.D.
431, 432 (D. Kan. 2007). The second stage, which comes at the
conclusion of discovery, applies a stricter standard of
“similarly situated, ” including application of
at least four factors, to determine whether the case can
proceed as a collective action. Thiessen, 267 F.3d
at 1102-03.
Plaintiff
seeks to represent a collective action consisting of
“all current and former Wireline Operators who worked
for any entity associated or affiliated with Cutters Wireline
Group at any time from June 14, 2014 to present.”
Docket No. 27 at 4. Plaintiff claims that defendants
“maintained a pay scheme that resulted in Wireline
Operators being underpaid for their overtime work.”
Id. at 8. In his complaint, plaintiff alleges that
the pay scheme “fail[ed] to compensate employees at
‘time and one-half' their regular rate of pay for
all overtime hours worked.” Docket No.1 at 1-2, ¶
1. Plaintiff alleges he “was required to work overtime
hours, and did so frequently, ” but that he “was
not compensated at the mandated time and one-half rate for
these overtime hours.” Id. at 4, ¶ 12.
Defendants
argue that plaintiff has not set forth substantial
allegations that he and other members are similarly situated
because he does not explain “how the application of a
common overtime policy to Plaintiff and the proposed class
members allegedly violated the FLSA.” Docket No. 29 at
6 (emphasis removed). Defendants further argue that plaintiff
improperly fails to distinguish between the employees of
Cutters and its subsidiaries who “operate separately
from one another in different states with separate payroll
systems and varying policies.” Id. at 7. The
Court finds these arguments unpersuasive. Plaintiff alleges
that, under defendants' payroll policies, he was not paid
a premium rate for overtime hours worked as required by the
FLSA. Docket No. 1 at 4, ¶ 12. Defendants do not
indicate any variance between Cutters' policies and those
of its subsidiaries that is relevant to plaintiff's claim
that defendants did not compensate overtime hours at a
premium rate, much less provide any evidence of such a
variance. See Docket No. 29-1. In light of the
absence of any indication that defendants' pay schemes
varied, the Court finds plaintiff's allegations are
sufficient to show that defendants' wireline operators
were subject to a common payment scheme.[2]Arfsten v.
Cutters Wireline Serv., Inc., No. 16-cv-01919-MSK-KMT,
2017 WL 2400489, at *1 (D. Colo. May 26, 2017) (finding
allegations that employees “were subject to the same
compensation policies concerning the payment of
overtime” were sufficient to show substantial
similarity).
Plaintiff
next argues that the Court should deny initial certification
because of individualized issues arising under the Motor
Carrier Act exemption, 29 U.S.C. § 213(b)(1) (the
“MCA exemption”). Docket No. 29 at
9.[3]
Under the MCA exemption, “any employee with respect to
whom the Secretary of Transportation has power to establish
qualifications and maximum hours of service pursuant
to” 49 U.S.C. § 31502 is exempt from the maximum
hours and overtime provisions of the FLSA at 29 U.S.C. §
207(a)(1). 29 U.S.C. § 213(b)(1). “FLSA exemptions
are construed narrowly and against the employer” and
the “employer has the burden to prove that the
exemption applies.” Vallejo v. Garda CL Sw.,
Inc., 56 F.Supp.3d 862, 868 (S.D. Tex. 2014) (citations
omitted). “For the Motor Carrier Act exemption to
apply, the employee must: (1) be employed by a motor carrier
subject to the Secretary of Transportation's
jurisdiction; (2) be engaged in activities directly affecting
motor vehicle safety; and (3) be engaged in activities
involving the interstate transportation of goods.”
Id. (citing 29 C.F.R. § 782.2). Plaintiff
argues that it is premature to address this issue at the
initial certification stage because claimants have not yet
been identified. Docket No. 32 at 3. He also argues that
there are likely to be so few opt-in plaintiffs that
individualized issues are unlikely to overwhelm the case.
Id. at 4. The Court agrees with plaintiff that this
issue is premature. See Thiessen, 267 F.3d at 1103
(noting that issues addressed at final certification include
the “(1) disparate factual and employment settings of
the individual plaintiffs; [and] (2) the various defenses
available to defendant which appear to be individual to each
plaintiff”). Defendants' arguments are supported by
only generalized statements about the nature of the wireline
operators' work which are insufficient to show that the
MSA exception will present substantial individualized issues.
In fact, defendants do not even show that the MSA exemption
applies to plaintiff. See Docket No. 29-1 at 3-4,
¶¶ 10-19. “Thus, the question of whether
[plaintiff], or indeed any wireline [operator] is exempt from
the FLSA's requirements is a matter for another day and
does not preclude the issuance of a Hoffmann-LaRoche
notice.” Arfsten, 2017 WL 2400489, at *2. The
Court finds that plaintiff has provided substantial
allegations that the putative collective action members are
similarly situated. See Thiessen, 267 F.3d at
1102-03. Therefore, the Court conditionally certifies a
collective action consisting of all current and former
Wireline Operators who worked for any entity associated or
affiliated with Cutters Wireline Group at any time from June
14, 2014 to present.
B.
Notice to ...