Metro v. Clean Harbors Environmental Services, Inc. et al

Filing 53

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER:The Court DENIES Clean Harbors' motion to dismiss (Dkt. No. 38 ) and ALLOWS Romero's motion for conditional certification (Dkt. No. 40 ). The Court conditi onally certifies the following collective action group: All solids control workers employed by, or working on behalf of, Clean Harbors during the past 3 years who were classified as independent contractors and paid a day rate. SO ORDERED.(Lara, Miguel)

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 1 of 22

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
)
)
)
)
Plaintiff,
)
)
v.
)
)
CLEAN HARBORS SURFACE RENTALS
)
USA, INC.,
)
)
Defendant.
)
___________________________________)
CHAD ROMERO, Individually
and on Behalf of All Others
Similarly Situated,

Civil Action
No. 18-10702-PBS

MEMORANDUM AND ORDER
March 21, 2019
Saris, C.J.
INTRODUCTION
Plaintiff Chad Romero (“Romero”) brings this action against
Defendant Clean Harbors Surface Rentals USA, Inc. (“Clean
Harbors”) under the federal Fair Labor Standards Act (“FLSA”) to
collect unpaid overtime wages on behalf of himself and other
similarly situated individuals who worked for Clean Harbors. Two
motions are before the Court: (1) Clean Harbors’ motion to
dismiss for failure to join a required party under Rule 19 of
the Federal Rules of Civil Procedure, and (2) Romero’s motion to
conditionally certify a collective action under the FLSA.

1

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 2 of 22

After hearing, the Court DENIES Clean Harbors’ motion to
dismiss (Dkt. No. 38) and ALLOWS Romero’s motion for conditional
certification (Dkt. No 40).
FACTUAL BACKGROUND
When all reasonable inferences are drawn in favor of the
non-moving party, the Second Amended Complaint alleges the
following facts, many of which are disputed.
I.

Parties
Romero worked for Clean Harbors from July 2016 to February

2018. He was a solids control technician, operating Clean
Harbors’ equipment to separate particles and debris from fluids
used for oil and natural gas drilling so the fluids could be
reused in the drilling process.
Clean Harbors is headquartered in Norwell, Massachusetts
and operates throughout the United States, Canada, and Mexico.
It provides environmental, energy, and industrial services to
companies in the chemical, energy, and manufacturing markets,
including the oil and natural gas industry. Clean Harbors
contracts with third-party staffing companies to supply workers
for certain projects.
II.

Employment Relationship
Romero regularly worked over 40 hours a week for Clean

Harbors. Rather than pay overtime, Clean Harbors classified
employees like Romero as independent contractors and paid them a
2

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 3 of 22

daily rate, or a “day rate,” with no overtime pay. Romero was
paid $275 per day when he started working for Clean Harbors and
$325 per day by the time he left, regardless of how many hours
over 40 he worked in a given week. He and other day-rate workers
often worked at least 12 hours a day, seven days a week—or more
than 84 hours per week.
Romero’s alleges that his classification as an independent
contractor was improper because, in fact, Clean Harbors was his
employer. Clean Harbors directed his rate of pay; he reported
directly to Clean Harbors, which coordinated his work and set
his schedule; Clean Harbors dictated his work locations; he was
required to follow Clean Harbors’ policies and procedures; and
Clean Harbors prohibited him from working for other employers or
subcontracting his work for Clean Harbors. Although Clean
Harbors “required Romero to go through a contracting company to
be paid,” information related to his pay rate is reflected in
its payroll records. The same is true of all other solids
controls workers who worked for Clean Harbors.
Clean Harbors not only knew its workers put in more than 40
hours per week, but it also required them to do so. Clean
Harbors failed to pay these workers overtime despite knowing
that they were not exempt from the FLSA’s overtime provisions.

3

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 4 of 22

III. Procedural History
An initial complaint was filed in this action in April 2018
and an amended complaint was filed in August 2018, both by
another Clean Harbors solids control worker, Trent Metro
(“Metro”). The initial and amended complaints named additional
entity defendants from the same corporate family as Clean
Harbors. In August 2018, Metro voluntarily dismissed from the
case the other entity defendants, leaving Clean Harbors as the
only defendant. In September 2018, due to the discovery of an
arbitration agreement in his employment contract, Metro
requested that his individual claims be dismissed from the
action and that he be substituted as named plaintiff. On
September 13, 2018, with leave of the Court, Romero filed the
Second Amended Complaint, which substituted him as named
plaintiff in the place of Metro.
On November 30, 2018, Clean Harbors moved to dismiss the
Second Amended Complaint pursuant to Federal Rule of Civil
Procedure 19 for failure to join a required party. On the same
day, Romero moved to conditionally certify an FLSA collective
action. On December 21, 2018, the parties opposed each other’s
motions, and, on January 4, 2019, the parties replied in support
of their respective motions. A hearing was held on both motions
on January 8, 2019.

4

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 5 of 22

Motion to Dismiss
I.

Legal Standard
The first step in a Rule 19 analysis is to determine

whether an absent party is a “required party” under Rule 19(a).
Bacardi Int’l Ltd. v. V. Suárez & Co., 719 F.3d 1, 10 (1st Cir.
2013). There are three ways to qualify as required party:
(1) if, in the party’s absence, the court cannot afford complete
relief among the existing parties; (2) if disposing of the case
without the absent party will, as a practical matter, impair or
impede the absent party’s ability to protect a claimed interest;
or (3) if deciding the case in the party’s absence will leave an
existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because
of a claimed interest in the case. Fed. R. Civ. P. 19(a). The
burden is on the party raising a Rule 19 defense to show that
the absent party is needed for a just adjudication. See In re
Veluchamy, 879 F.3d 808, 819 n.4 (7th Cir. 2018).
If the Court finds that the absent party is a required
party, it must then determine whether joinder is feasible. See
Fed. R. Civ. P. 19(b). If joinder is not feasible, the Court
must next determine “whether in equity and good conscience the
action should proceed among the parties before it, or should be
dismissed.” Picciotto v. Cont’l Cas. Co., 512 F.3d 9, 18 (1st
Cir. 2008) (quoting Fed. R. Civ. P. 19(b)). In other words, the
5

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 6 of 22

Court must determine whether the absent party is “indispensable”
such that there can be “no viable lawsuit without the missing
party.” Id. at 20. Under Rule 19(b), the Court considers four
factors in making this assessment: (1) the extent to which a
judgment rendered in the party’s absence might prejudice that
party or the existing parties; (2) the extent to which any
prejudice could be lessened or avoided by protective provisions
in the judgment, shaping the relief, or other measures;
(3) whether a judgment rendered in the party’s absence would be
adequate; and (4) whether the plaintiff would have an adequate
remedy if the action were dismissed for nonjoinder. Fed. R. Civ.
P. 19(b). If the absent party is “indispensable,” then the case
must be dismissed. Picciotto, 512 F.3d at 16.
II.

Discussion
A. Materials Outside the Pleadings
Romero raises the threshold issue of whether it is

appropriate to consider materials outside the pleadings in
deciding a Rule 19 motion. Specifically, Romero objects to Clean
Harbors’ reliance on two declarations submitted in support of
its motion to dismiss.
The first declaration is made by Nathan McCullough
(“McCullough”), a branch manager responsible for Clean Harbor’s
Wyoming operations, from which the following information is
drawn. The demand for workers in the oil and gas industry
6

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 7 of 22

rapidly rises and falls. In order to meet these fluctuating
needs, Clean Harbors contracts with a variety of staffing
companies to supplement its workforce on an as-needed basis. One
of these staffing companies was Drilling Professionals, LLC
(“Drilling Professionals”), which contracted directly with
Romero. The terms of Clean Harbors’ agreements with these
staffing companies vary widely, although McCullough does not
specify how. Clean Harbors negotiated “rates for services” with
Drilling Professionals and other staffing companies, but never
directly negotiated terms with any supplied worker. Workers
received their pay and tax-related documents directly from the
staffing companies.
Romero worked at several drilling sites in Wyoming operated
by one of Clean Harbors’ clients, Ultra Petroleum Corp. (“Ultra
Petroleum”). Drilling Professionals conducted a background check
and drug test on Romero before assigning him to a work site.
Romero traveled to the site in his own vehicle and operated
equipment that Ultra Petroleum leased from Clean Harbors (and
other third parties). Clean Harbors did not pay Romero or
determine Romero’s pay. Rather, Drilling Professionals invoiced
Clean Harbors for the work Romero performed. Clean Harbors
submitted three such invoices from December 2016 and January
2017 as exhibits to McCullough’s declaration.

7

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 8 of 22

The second declaration is made by Clean Harbors’ counsel,
who avers that Drilling Professionals is a Texas limited
liability corporation with its principal place of business in
Midland, Texas. Clean Harbors also submitted as an exhibit to
the declaration a document from the website of the Texas
Secretary of State showing that Drilling Professionals is a
registered Texas business.
Clean Harbors has styled its Rule 19 motion as a motion for
judgment on the pleadings pursuant Federal Rule of Civil
Procedure 12(c). In deciding motions for judgment on the
pleadings, the Court cannot consider materials outside the
pleadings without converting the motion into one for summary
judgment. See DeMayo v. Nugent, 517 F.3d 11, 19 (1st Cir. 2008).
However, a party also may move to dismiss for failure to join a
party under Rule 19 pursuant to Rule 12(b)(7). Fed. R. Civ. P.
12(b)(7). Such a motion requires the Court to “accept the
allegations contained in the plaintiff’s complaint as true.” J&J
Sports Prods. Inc. v. Cela, 139 F. Supp. 3d 495, 499 (D. Mass.
2015). But the Court is not limited to the pleadings and may
consider other relevant extra-pleading evidence, such as
declarations or affidavits. Id. Here, the Court will treat Clean
Harbors’ Rule 19 motion as arising under Rule 12(b)(7) and
consider the declarations that Clean Harbors submitted with its
motion.
8

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 9 of 22

B. Rule 19 Analysis
Clean Harbors argues that Drilling Professionals is a
required party because Romero’s FLSA claim will require the
Court to determine the nature of the employment relationship
involving Romero, Clean Harbors, and Drilling Professionals.
Clean Harbors further argues that joinder is not feasible
because the Court lacks personal jurisdiction over Drilling
Professionals and that Drilling Professionals is an
indispensable party pursuant to Rule 19, so the case must be
dismissed. This argument falls at the first hurdle.
The parties do not dispute that Romero’s FLSA claim seeking
backpay requires him to show that he was employed by Clean
Harbors. See Manning v. Bos. Med. Ctr. Corp., 725 F.3d 34, 43
(1st Cir. 2013) (setting out basic elements of FLSA claim). What
the parties do dispute is what the fact-finder must decide in
order to determine whether an employment relationship existed
between Clean Harbors and Romero. Clean Harbors assumes that in
making this determination the fact finder necessarily must
decide whether an employment relationship also existed between
Romero and Drilling Professionals, but this is not the law.
For the purposes of determining whether a worker is the
employee of a particular alleged employer under the FLSA, the
Court must look to the totality of the circumstances, including
whether the alleged employer: (1) had the power to hire and fire
9

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 10 of 22

the employee, (2) supervised and controlled employee work
schedules or conditions of employment, (3) determined the rate
and method of payment, and (4) maintained employment records.
Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 675
(1st Cir. 1998). Multiple employers may be held liable for the
same conduct. Id. at 675 (“The FLSA contemplates several
simultaneous employers, each responsible for compliance with the
Act.”). But the employment relationship test is the same whether
there is one putative employer or multiple. See id. Crucially,
the test is applied to each putative employer individually. See
Hamilton v. Partners Healthcare Sys., Inc., 209 F. Supp. 3d 379,
31 (D. Mass. 2016) (“[J]oint employer status recognizes that an
employee can have multiple discrete but related employers, not
that employment status can be ineffable."), aff'd, 879 F.3d 407
(1st Cir. 2018). While the analysis of the alleged employment
relationship between Romero and Clean Harbors likely would
consider facts about Drilling Professionals’ relationship with
Romero, the fact finder does not need to decide whether an
employment relationship also existed between Drilling
Professionals and Romero.
Once this assumption falls away, Clean Harbors’ various
arguments that Drilling Professionals is a required party lose
their persuasive force. Clean Harbor’s main argument for
dismissal is essentially a merits argument. Relying on its
10

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 11 of 22

declarations, Clean Harbors argues that it was not Romero’s
employer and, to the extent Romero was not an independent
contractor and had an employer, that employer was Drilling
Professionals. This argument ultimately may be a successful one,
but it does not provide a basis for dismissal under Rule 19.
That Romero might have named the wrong defendant—or might not
have a claim at all—does not mean he cannot receive complete
relief from Clean Harbors. See Watchtower Bible & Tract Soc'y of
N.Y., Inc. v. Municipality of San Juan, 773 F.3d 1, 13 (1st Cir.
2014). It just means that he might not be entitled to relief.
Further, if the ultimate fact finder is persuaded by Clean
Harbors’ argument, that does not mean it also has to decide that
Drilling Professionals was Romero’s employer.
Alternatively, Clean Harbors argues that it could have been
a joint employer together with Drilling Professionals. Even if
there were a joint employer relationship, that would not require
joinder of Drilling Professionals either. See Temple v. Synthes
Corp., 498 U.S. 5, 7 (1990) (per curiam) (“It has long been the
rule that it is not necessary for all joint tortfeasors to be
named as defendants in a single lawsuit.”). Clean Harbors thinks
it has found a way around this rule because under the FLSA it is
not necessarily the case that joint employers are held joint and
severally liable. Specifically, Clean Harbors points out that
Romero’s claims to a three-year statute of limitations and
11

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 12 of 22

liquidated damages depend on a finding that his employer(s)
willfully violated the FLSA. Since it is possible the fact
finder might decide that Drilling Professionals acted willfully
but not Clean Harbors, it is also possible that only Drilling
Professionals would be liable for the additional year of damages
and liquidated damages. Clean Harbors argues that in this
specific, hypothetical scenario Romero would not recover as much
in damages if Drilling Professionals is not joined. But this
misses the point of Rule 19—"complete relief” does not require
the joinder of all parties who might enhance plaintiff’s damages
award. See Bacardi, 719 F.3d at 10 (finding complete relief
available even though a dispute with an absent party might be
left unresolved). Under Rule 19, “[r]elief is complete when it
meaningfully resolves the contested matter as between the
affected parties.” Watchtower, 773 F.3d at 13. The absence of
Drilling Professionals does not in any way prevent the Court
from resolving Romero’s claims against Clean Harbors, either for
three years of unpaid overtime or for liquidated damages.
Finally, Clean Harbors claims this action threatens to
impair Drilling Professionals’ contractual relationship with
Romero, but this argument too is unpersuasive. Since the fact
finder does not need to decide any issue regarding the
employment relationship between Drilling Professionals and
Romero, there is no risk that a judgment in this action might
12

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 13 of 22

indirectly reform or otherwise invalidate the contract between
them. In general, a party to a contract that is not at issue in
the litigation is not a necessary party, even if as a practical
matter the absent party’s contractual interests might be
affected by the outcome of the litigation. Bos. Car Co. v. Acura
Auto. Div., Am. Honda Motor Co., 127 F.R.D. 434, 435 (D. Mass.
1989). And even if this did make Drilling Professionals a
necessary party, it still would not make the company an
indispensable one. See Casas Office Machs., Inc. v. Mita
Copystar Am., Inc., 42 F.3d 668, 677 (1st Cir. 1994)
(determining that a contractual party was dispensable even
though resolution of separate tort claims might affect its
rights or obligations under the contract). The contract between
Drilling Professionals and Romero may be relevant evidence in
this case, but its existence does not render Drilling
Professionals a necessary party pursuant to Rule 19(a).
Accordingly, because Drilling Professionals is not a
necessary party under Rule 19(a), Clean Harbors’ motion to
dismiss is denied.
Motion for Conditional Certification
I.

Legal Standard
There are three basic elements to an FLSA claim: (1) the

plaintiffs were employed by the defendant; (2) the work involved
interstate activity; and (3) the plaintiffs performed work for
13

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 14 of 22

which they were under-compensated. Manning, 725 F.3d at 43. A
claim for unpaid overtime wages must also “demonstrate that the
plaintiffs were employed ‘for a workweek longer than forty
hours’ and that any hours worked in excess of forty per week
were not compensated ‘at a rate not less than one and one-half
times the regular rate.’” Id. (quoting 29 U.S.C. § 207(a)(1)).
Day-rate workers generally are entitled to overtime pay. See 29
C.F.R. § 778.112 (describing method for calculating overtime
rate for day-rate workers).
The FLSA allows employees to band together to enforce their
rights by initiating or joining a collective action. See
Cunha v. Avis Budget Car Rental, LLC, 221 F. Supp. 3d 178, 181
(D. Mass. 2016) (quoting 29 U.S.C. § 216(b)). Unlike a class
action under Federal Rule of Civil Procedure 23, collective
actions under the FLSA “require similarly situated employees to
affirmatively opt-in and be bound by any judgment.” Id.
(quotation omitted). To facilitate this opt-in mechanism, courts
have developed a certification process for plaintiffs seeking to
bring FLSA collective actions. See Kane v. Gage Merch. Servs.,
Inc., 138 F. Supp. 2d 212, 214 (D. Mass. 2001) (citing Hoffmann–
La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)). Although
the First Circuit has not prescribed a specific certification
procedure, “most courts—including most district courts in this
circuit—follow a two-step approach.” Cunha, 221 F. Supp. 3d at
14

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 15 of 22

181-82 (citing Trezvant v. Fidelity Emp’r Servs. Corp., 434 F.
Supp. 2d 40, 43 (D. Mass. 2006)).
First, “the court makes an initial determination of whether
the potential class should receive notice of the pending
action.” Trezvant, 434 F. Supp. 2d at 42. “[T]his determination
is made using a fairly lenient standard, which typically results
in conditional certification.” Id. at 43. The plaintiff must
show only “that there is ‘some factual support’—as opposed to
mere allegations—that the potential plaintiffs are similarly
situated.” Cunha, 221 F. Supp. 3d at 182.
Second, “after discovery is complete, the court makes a
final ‘similarly situated’ determination.” Trezvant, 434 F.
Supp. 2d at 42. Pertinent factors at this stage include: (1) any
disparate factual and employment settings—for example, whether
plaintiffs were employed in the same corporate department,
division, and location; (2) the various defenses available to
the defendant which appear to be individual to each plaintiff;
and (3) fairness and procedural considerations. Id. at 45
(citations omitted). This case is only at the first step.
II.

Discussion
A. Certification
Romero requests that the Court conditionally certify the

following collective action group:

15

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 16 of 22

All solid control workers employed by, or working on
behalf of, Clean Harbors during the past 3 years who
were classified as independent contractors and paid a
day-rate.
Dkt. No. 41 at 6. In support of this request, Romero has
submitted four declarations from prospective group members—one
from Romero and three from other solids control workers who
worked for Clean Harbors. See Dkt. No. 41 Ex. Nos. 1-4.
The declarations all contain substantially similar
assertions that track the allegations in the Second Amended
Complaint. They claim that the technicians were classified as
independent contractors, but in fact Clean Harbors scheduled the
days and hours that the technicians worked, provided them with
necessary equipment to perform their work, instructed them on
how to perform their duties, required them to comply with Clean
Harbors’ company policies, and supervised their performance. The
technicians performed substantially similar job duties,
including ensuring the safe operation of drilling site
equipment, completing required safety documentation, operating
solids and waste management equipment, and setting up and
tearing down centrifuges. Technicians were not allowed to
subcontract out their job assignments to other workers.
The declarations also state that Clean Harbors paid a flat
day rate (between $275 and $300 per day), with no guaranteed
money, no salary, and no overtime. Yet, the solids control

16

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 17 of 22

workers worked 12-hour shifts and regularly put in more than 40
hours per week. They were also on-call 24 hours a day while
living in a trailer at the job site, which was paid for by Clean
Harbors. Such arrangements were typical for these workers, and
the workers believe the failure to pay overtime to day-rate
workers is a standard company practice.
These assertions satisfy the “modest factual showing”
required at step one of the FLSA certification procedure.
Trezvant, 434 F. Supp. 2d at 43. The declarations support
Romero’s allegation that a substantial number of technicians
were employees of Clean Harbors and did not receive required
overtime pay as the result of a standard company practice.
Courts regularly allow conditional certification based on
similar factual materials. See, e.g., Torrezani v. VIP Auto
Detailing, Inc., 318 F.R.D. 548, 557-58 (D. Mass. 2017)
(allowing conditional certification of overtime collective
action for group of auto detailers and cleaners); Tamez v. BHP
Billiton Petroleum (Americas), Inc., 5:15–CV–330–RP, 2015 WL
7075971, at *6 (W.D. Tex. Oct. 5, 2015) (concluding that even
“skeletal” and “cursory” declarations showing similarity were
sufficient to warrant conditional certification); Scovil v.
FedEx Ground Package Sys., Inc., 811 F. Supp. 2d 516, 519-20 (D.
Me. 2011) (allowing conditional certification for overtime
collective action based on affidavits from six FedEx drivers).
17

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 18 of 22

And collective actions on behalf of day-rate workers are also
common. See, e.g., Tamez, 2015 WL 7075971, at *7; Whitlow v.
Crescent Consulting, LLC, 322 F.R.D. 417, 422 (W.D. Okla. 2017).
Nevertheless, Clean Harbors makes several arguments against
conditional certification, which are attacks on the similarity
of the proposed group and the merits of Romero’s claim. These
arguments are unavailing.
The common thread running through Clean Harbors’ arguments
about the similarity of the proposed group is the fact that
Clean Harbors did not contract with the solid controls workers
directly but instead retained them through staffing companies
like Drilling Professionals. For various reasons, Clean Harbors
insists that this employment arrangement renders the proposed
group members too dissimilar to support certification. Yet
Romero has alleged that Clean Harbors had a common scheme of not
paying day-rate workers overtime. He has supported his
allegations with declarations from solids control workers from
three different staffing companies. Indeed, the declarations
describe a uniform set of policies and practices that applied to
solids control workers regardless of their staffing company.1 In

Clean Harbors also complains that the declarations are “identical” and,
therefore, they cannot support certification. Yet the Court’s task is to
decide whether the affected workers are “similarly situated.” To this end,
similarity in their declarations is to be expected and, in fact, supports
certification.
1

18

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 19 of 22

view of this evidence, the differences identified by Clean
Harbors do not defeat certification at this stage.
As for the merits of Romero’s claim, courts generally do
not consider merits questions when deciding whether to
conditionally certify an FLSA collective action group. Montoya
v. CRST Expedited, Inc., 311 F. Supp. 3d 411, 420 (D. Mass.
2018); see also Lichy v. Centerline Commc’ns LLC, 15-cv-13339ADB, 2018 WL 1524534, at *4 (D. Mass. Mar. 28, 2018) (collecting
cases). For example, Clean Harbors contends that Romero did, in
fact, receive overtime pay, citing heavily redacted documents.
Romero avers that he was not paid overtime. This is a pure
factual dispute, which will either be reconciled in the course
of discovery or decided by the ultimate fact finder, and it is
not the type of dispute that the Court can resolve at the
conditional certification stage.
Accordingly, the Court conditionally certifies the
collective action group proposed by Romero.
B. Notice
In addition to seeking conditional certification, Romero
asks the Court to approve his proposed procedure for giving
notice to the group. Romero’s proposal has two main components.
First, Romero attaches as an exhibit to his motion a “Notice of
Unpaid Overtime Lawsuit” (“Proposed Notice and Consent Form”),
which he requests the Court approve for dissemination to
19

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 20 of 22

potential group members. Second, he proposes a process and
schedule for providing notice to the group. (“Proposed Notice
Procedure”). Clean Harbors lodges several objections to Romero’s
proposal. In an FLSA collective action, the Court has discretion
in helping to facilitate notice to potential group members. See
Kane, 138 F. Supp. 2d at 214 (citing Hoffmann–La Roche, 493 U.S.
at 169).
With respect to the Proposed Notice and Consent Form, Clean
Harbors objects that it “is improper in many respects” but only
offers a single example, that “it contains a one-sided and
misleading recitation of the facts.” Dkt. No. 48 at 23 n.9. The
Court disagrees. Rather, the Proposed Notice and Consent Form
includes very little factual material and is a faithful
representation of Mr. Romero’s allegations against Clean
Harbors. Therefore, the Court approves Romero’s Proposed Notice
and Consent Form for use in contacting members of the
conditionally certified collective action group.2
Turning next to the Proposed Notice Procedure, the Court
agrees with Romero that email notice is appropriate in this case
because it is likely to be more effective than alternative

The Court does note that Romero is not consistent in how he defines the
collective action group between the Second Amended Complaint (“workers”), the
motion for conditional certification (“solids control workers”), and the
Proposed Notice and Consent Form (“Solids Control Technicians”). Before
notice is sent to group members, the Proposed Notice and Consent Form should
be updated to accurately reflect the collective action group conditionally
certified by this order.
2

20

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 21 of 22

methods. See, e.g., Torrezani v. VIP Auto Detailing, Inc., 1640009-TSH, 2017 WL 2951618, at *2 (D. Mass. May 31, 2017); Kane,
138 F. Supp. 2d at 216. For similar reasons, Romero’s counsel is
permitted to create a standalone webpage through which group
members can electronically submit their consent forms. And Clean
Harbors must provide Romero with the telephone numbers for
potential group members. See Torrezani, 318 F.R.D. at 558
(requiring Defendant to provide telephone numbers for
conditionally certified group of auto detailers). However,
Romero has not supplied good reasons for why he needs the Social
Security numbers for potential group members.3 Clean Harbors does
not have to provide Romero with this information.
Subject to the forgoing modifications, the Court approves
Romero’s Proposed Notice Procedure. The schedule contemplated by
the Proposed Notice Procedure will take effect from the date of
this order.
ORDER
The Court DENIES Clean Harbors’ motion to dismiss (Dkt. No.
38) and ALLOWS Romero’s motion for conditional certification
(Dkt. No 40). The Court conditionally certifies the following
collective action group:
All solids control workers employed by, or working on
behalf of, Clean Harbors during the past 3 years who
Indeed, at the hearing held on January 8, 2019, Romero’s counsel conceded
that they did not need this information to give notice to the group.
3

21

Case 1:18-cv-10702-PBS Document 53 Filed 03/21/19 Page 22 of 22

were classified as independent contractors and paid a
day rate.
SO ORDERED.

/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge

22