A federal district judge in Texas recently granted a motion for conditional certification in an unpaid overtime case brought by oilfield workers.  The case was filed by several former employees of Select Energy Services.  The workers, who had been safety coordinators for the company, claimed that Select Energy, which provides services to oilfield operators, failed to pay them overtime despite working in excess of forty hours per week, which the plaintiffs alleged constituted a violation of the Fair Labor Standards Act, or FLSA.

The FLSA requires employers to pay their non-exempt employees one-and-a-half times their regular rate of pay for each hour worked in excess of forty per week.  The FLSA allows claims for unpaid overtime to be filed by a worker “on behalf of himself…[a]nd other employees similarly situated.”  The statute creates an “opt-in” scheme which allows other workers to affirmatively notify the court that they desire to become parties to the unpaid overtime suit.  Before notice is sent to other, similarly situated workers, a court must first decide whether the case should be certified as a collective action.  While there is some debate as to what standard a court should use when determining whether to certify a case as a collective action under the FLSA, most courts, particularly in the Fifth Circuit, utilize the two-stage analysis.

Under this two-stage analysis:

1. The court first determines whether the class representative’s claims are sufficiently similar to merit sending notice of the action to the proposed collective action members.  If so, notice is sent to all of the proposed class members and they are allowed to “opt in” to the lawsuit.
2. The second step in the analysis, which generally occurs after discovery is complete or nearly complete, the court must make a final determination as to whether the plaintiffs are similarly situated to proceed in a single action.  If so, the case remains certified and all opt-in plaintiffs proceed to trial in a single case.  If not, the case is decertified, the opt-in plaintiffs are dismissed, and the original plaintiff proceeds on his or her individual unpaid overtime claim.

The plaintiffs in the Select Energy case filed a motion to conditionally certify their case as a collective action.  The Court noted that at this initial stage, there is a “fairly lenient standard” due to the lack of evidence available during the first stage.  Instead, the Court should determine whether to conditionally certify a case as a collective action “based only on the pleadings and any affidavits which have been submitted.”  The Court found that the plaintiffs had satisfied their burden to conditionally certify the case as a collective action citing evidence that the defendant paid a flat salary for all hours worked, that other plaintiffs had joined the lawsuit since it was filed, and that the plaintiffs identified other potential plaintiffs who performed the same job and were paid in the same fashion.  Accordingly, the Court conditionally certified the unpaid overtime case as a collective action under the FLSA and ordered the parties to submit a joint proposed notice to potential opt-in plaintiffs within ten days of the order.

About the author: Josh Borsellino represents workers to get them the unpaid overtime they earned.  If you have questions about unpaid overtime, call 817.908.9861 or 432.242.7118 or fill out this form for a free evaluation of your overtime issues.