United States District Court, D. Colorado
JORDON MACDONALD, on behalf of himself and all similarly situated persons, Plaintiff,
COVENANT TESTING TECHNOLOGIES, LLC, Defendant.
ORDER ON PLAINTIFF'S MOTION FOR APPROVAL OF
HOFFMAN-LAROCHE NOTICE (DKT. #24)
Reid Neureiter United States Magistrate Judge.
matter is before the Court on Plaintiffs Motion for Approval
of Hoffman-LaRoche Notice (Dkt. #24). This case was
directly assigned to the undersigned Magistrate Judge
pursuant to D.C.COLO.LCivR 40.1(c), and the parties consented
to Magistrate Judge jurisdiction pursuant to D.C.COLO.LCivR
40.1(c) and 28 U.S.C. § 636(c) (Dkt. #9).
Court has reviewed and carefully considered Plaintiffs motion
(Dkt. #24), Defendant's Response in Opposition (Dkt.
#26), Plaintiffs Reply (Dkt. #27), and the exhibits attached
to these briefs. The Court also heard oral argument at a
hearing held on April 10, 2019 (Dkt. #28), has taken judicial
notice of the Court's case file, and considered the
applicable Federal Rules of Civil Procedure, statutes, and
fully informed, and for the reasons discussed below, it is
ORDERED that Plaintiff's Motion is GRANTED in part and
DENIED in part without prejudice.
Covenant Testing Technologies, LLC ("Covenant") is
an oilfield service company that provides flowback and
well-testing services in Colorado and Texas. Plaintiff Jordan
MacDonald is a former Covenant employee who provided testing
services primarily in Weld County, Colorado.
to Mr. MacDonald, he frequently was required to work more
than twelve (12) hours each day and/or more than forty (40)
hours each work week, but was not compensated at the time and
a half rate for all of his overtime hours, as required under
the Fair Labor Standards Act, 29 U.S.C. §§ 201-219
("FLSA"). Mr. MacDonald alleges that other current
and former Covenant employees, who are similarly situated to
him, also were not properly compensated for all of their
overtime hours in violation of the FLSA. He thus seeks
certification of an FLSA "opt-in" collective action
pursuant to 29 U.S.C. § 216(b) to recover damages and
backpay for all such employees.
MacDonald has identified two specific Covenant overtime pay
policies that allegedly violate the FLSA. First, he asserts
that Covenant paid him and other employees a "per
diem" amount in excess of their reimbursable business
expenses, and that this per diem was actually additional
compensation that should have been included in his and other
employees' overtime rate. Second, Mr. MacDonald alleges
that Covenant failed to properly calculate his and other
employees' overtime hours. Specifically, Mr. MacDonald
alleges that Covenant required him to pick up and drop off
fellow workers, and drive them to and from worksites, but
failed to pay him overtime for this pre- and post-shift drive
FLSA governs the payment of minimum wages and overtime
compensation between an employer and its employees.
See 29 U.S.C. §§ 206-207. Under the FLSA,
a covered employer must pay its employees for the time that
it employs them, and generally requires covered employers to
compensate employees for work exceeding forty hours in a work
week, or twelve hours in any given day. See 29
U.S.C. §§ 206(a), 207(a). The required overtime
compensation is one and one-half times an employee's
"regular rate" of pay. 29 U.S.C. § 207(e).
216(b) of the FLSA authorizes private individuals to recover
damages for violations of minimum wage and overtime
provisions. It provides, in relevant part, that "[a]n
action to recover the liability [for unpaid overtime
compensation, retaliation, and liquidated damages] may be
maintained against any employer... in any Federal or State
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).
The FLSA thus gives plaintiffs the opportunity to proceed
collectively; which, in turn, allows "plaintiffs the
advantage of lower individual costs to vindicate rights by
the pooling of resources." Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 170 (1989) (interpreting the Age
Discrimination in Employment Act ("ADEA"), 29
U.S.C. §§ 621-634, which explicitly incorporates
the collective action provisions of the FLSA).
class action members under Fed.R.Civ.P. 23, plaintiffs who
wish to participate in a FLSA collective action must
expressly opt in to the action in writing. 29 U.S.C. §
216(b) ("No employee shall be a party plaintiff to any
such 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."). See also In re Am. Family
Mut. Ins. Co. Overtime Pay Litigation, 638 F.Supp.2d
1290, 1298 (D. Colo. 2009). "FLSA action claimants
[also] retain the right to separately pursue their rights and
are only bound by the outcome of the collective action if
they expressly choose to join in the litigation."
Slaughter v. Sykes Enterprises, Inc., No.
17-CV-02038-KLM, 2018 WL 1556881, at *1 (D. Colo. Mar. 12,
2018) (citing Genesis Healthcare Corp. v. Smith, 569
U.S. 66, 74(2013)).
Thiessen v. General Electric Capital Corp., the
United States Court of Appeals for the Tenth Circuit
("Tenth Circuit") approved a two-step, case-by-case
process, known as an ad hoc approach, for determining whether
putative collective members are "similarly
situated" to the named plaintiff. 267 F.3d 1095, 1105
(10th Cir. 2001).Pursuant to this approach, at the initial
"notice stage"-where we are in this case-the trial
court determines whether the plaintiff has asserted
"substantial allegations that the putative class members
were together the victims of a single decision, policy, or
plan." Id. at 1102 (also noting that,
"[u]nfortunately, § 216(b) does not define the term
'similarly situated.'"). The Thiessen
court concluded that "[a]rguably, the ad hoc
approach is the best. . . because it is not tied to the Rule
23 standards." Id. at 1105.
the second stage-which is "[a]t the conclusion of
discovery," and "often prompted by a motion to
decertify"-the court applies a stricter standard to
determine whether the action should continue as a collective
action. Id. at 1102-03. At the second stage, the
"court reviews several factors, including '(1)
disparate factual and employment settings of the individual
plaintiffs; (2) the various defenses available to defendant
which appear to be individual to each plaintiff; (3) fairness
and procedural considerations; and (4) whether plaintiffs
made [any required filings] before instituting
suit.'" Id. at 1103 (quoting Vaszlavik
v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo.
courts in this District have followed this ad hoc approach in
determining whether plaintiffs can move forward collectively
under the FLSA. See, e.g., Baldozier v. American Family
Mut. Ins. Co., 375 F.Supp.2d 1089, 1092 (D. Colo. 2005);
but see Turner v. Chipotle Mexican Grill, Inc., 123
F.Supp.3d, 1300, 1309 (D. Colo. 2015) (rejecting the two-step
ad hoc process in favor of an approach that
"presumptively allow[s] workers bringing the same
statutory claim against the same employer to join as a
collective, with the understanding that individuals may be
challenged and severed from the collective if the basis for
their joinder proves erroneous.")
Conditional, Initial Certification-the "Notice
case is at the initial "notice stage." By seeking
approval of his proposed Hoffman-LaRoche Notice, Mr.
MacDonald is asking the Court to conditionally certify this
case as a collective action pursuant to § 216(b) of the
FLSA. With respect to initial or conditional certification,
the court determines whether plaintiffs are similarly