Whitlow et al v. Crescent Consulting LLC

Filing 85

ORDER granting in part and denying in part 30 Motion to Certify Class. For the reasons set forth, the Court certifies a collective class of all persons who served as drilling consultants on behalf of Defendant Crescent Consulting, LLC and were paid, in full or part, a day-rate without overtime but performed in excess of forty hours of work in any given week at any time since April 29, 2014, as more fully set out. Signed by Honorable David L. Russell on 8/14/17. (jw)

Case 5:16-cv-01330-R Document 85 Filed 08/14/17 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TOMMY WHITLOW, on behalf of himself )
and all other similarly situated individuals, )
)
Plaintiff,
)
)
v.
)
)
)
CRESCENT CONSULTING, LLC.
)
)
Defendant.
)

Case No. CIV-16-1330-R

ORDER
Before the Court is Whitlow’s Motion for Conditional Certification. [Doc. 30]. The
matter is fully briefed. For the reasons set forth herein, Plaintiff’s Motion is GRANTED
IN PART and DENIED IN PART. The Court will conditionally certify a class consisting
of all persons that served as drilling consultants for Crescent Consulting, LLC, and were
paid as independent contractors, that were provided a 1099 rather than a W-2, and paid a
“day-rate” without overtime at any time since April 29, 2014.1
The Fair Labor Standards Act (“FLSA”) ensures that certain employers pay their
employees overtime compensation if earned. See 29 U.S.C. § 207. The Act creates a private
right of action for “one or more employees” to bring an action against their employer to
recover unpaid wages or overtime compensation on “behalf of himself or themselves and
other employees similarly situated.” 29 U.S.C. § 216(b). Unlike a class action under Rule

  This date accounts for the 107 days the statute of limitations was tolled pending discovery and Defendant’s
response to the instant motion. This same date should be used throughout the Notice as necessary.  

1

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23, an action on behalf of similarly situated employees under the FLSA is denoted a
collective action, and putative plaintiffs must “opt in” rather than “opt out.” See 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 a party and such consent is filed in the court in which such
action is brought.”) Pursuant to these provisions, Tommy Whitlow challenges the pay he
received from Defendant Crescent Consulting LLC.’s in his capacity as a drilling
consultant. He seeks to pursue this action on behalf of all “drilling consultants employed
by, or working on behalf of, Crescent Consulting, LLC as independent contractors and paid
on a day rate any time between three years prior to the date of [any order certifying a
collective action] and the present.” [Doc. No. 30, pp. 13-14]. As noted above, § 216(b)
permits similarly situated employees to pursue a collective action; however, the term
“similarly situated” is not defined by the FLSA. See Thiessen v. Gen. Elec. Capital Corp.,
267 F.3d 1095, 1102 (10th Cir. 2001).
In Thiessen, the Tenth Circuit discussed three approaches to assessing whether
putative plaintiffs are similarly situated and therefore certification of a collective action is
appropriate: the ad hoc approach, the Rule 23 approach, and the spurious approach. Id. at
1102-03. The court was called upon to consider whether, in the context of an action under
the Age Discrimination in Employment Act (“ADEA”), the district court erred in utilizing
the ad hoc approach. Under this approach, the district court undertakes a two-step inquiry,
the first of which utilizes a lenient standard for assessing whether putative plaintiffs are
similarly situated. Step one, known as the notice step, mandates “nothing more than
substantial allegations that the putative class members were together the victims of a single
2

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decision, policy, or plan.” Id. at 1102 (internal quotation marks omitted). Step one
certification is the vehicle by which the Court authorizes the named plaintiff to give notice
to the other similarly situated persons, granting them the opportunity to opt in by filing a
consent with the Court. Step two, which occurs after discovery, invokes a stricter level of
review, the Court considering “(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 the filings required . . . .” Id. at 1103 (internal quotation marks omitted).
The second stage is commonly referred to as the decertification stage. In Thiessen the Tenth
Circuit approved reliance on the ad hoc approach, although it noted that all three
approaches generally call for consideration of “the same or similar factors.” Id. at 1105.
Since Thiessen, the undersigned has applied the two-step approach in FLSA actions,
despite the fact that Thiessen arose under the ADEA.2 See Hart v. Sandridge Energy, Inc.,
Case No. 14-cv-00178-R (Doc. No. 76); Foust v. CPI Security Services Inc., Case No. 16cv-1447-R (Doc. No. 54); Benson v. Plaster & Wald Consulting Corp., Case. No. 16-cv801-R (Doc. No. 37). Nothing in Defendant’s brief convinces this Court that its prior

 The ADEA borrows the FLSA’s enforcement mechanisms. See 29 U.S.C. § 626(b) (incorporating § 216(b)).
Defendant argues that due to the differing contexts, this Court should not rely on Thiessen. To the extent Defendant
argues Thiessen and its ad hoc approach do not apply, the Court would alternatively adopt the analysis set forth by
the District of Colorado in Turner v. Chipotle, 123 F.Supp.3d 1300 (D.Colo. 2015), wherein the court eschewed the
formalities of a two-step certification process, concluding that liberal joinder of similarly situated parties should be
permitted. It concluded courts should “presumptively allow 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.” Id. at 1309. Under this approach, the Court has no
difficultly concluding that driller consultants engaged by Defendant to perform operations for third-parties and paid
as independent contractors under a common scheme, as alleged in Plaintiff’s briefs and the evidence in support
thereof, could be properly joined in this action with Mr. Whitlow.  

2

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holdings were inappropriate or that it should deviate from application of the ad hoc
approach to certification in this FLSA action.
As such, at this first step the Court is concerned with whether Mr. Whitlow has
made substantial allegations that the drilling consultants were the victims of a single
decision, policy or plan. Mr. Whitlow alleges in his November 21, 2016 Complaint that
he was employed by Crescent Consulting as an oilfield contractor and/or consultant.
[Complaint, ¶ 6]. He contends he and other drilling consultants were improperly classified
by Defendant as independent contractors, and paid a day rate─that is a set amount of
compensation for each day worked irrespective of the number of hours worked─without
overtime for hours worked in excess of forty in any given workweek. Plaintiff Whitlow
contends he worked in excess of forty hours each week while engaged by Crescent
Consulting, and that Defendant’s failure to compensate him for these hours violated the
FLSA. See 29 U.S.C. § 207(a)(1).
As set forth above, because the Court is at the “notice stage,” it limits inquiry to
whether Mr. Whitlow makes substantial allegations that the putative members of the class
were victims of a single policy or plan. Mr. Whitlow alleges and presents evidence that
Defendant retained persons it identified as independent contractors to serve as drilling
consultants for third parties, such as Sandridge Energy and Chesapeake Energy. These
persons were allegedly paid a set day rate, regardless of the number of hours worked in a
day, and more importantly, without regard to whether the drilling consultant worked more
than forty hours in a given workweek. Plaintiff alleges the putative plaintiffs were subject
to a compensation-scheme that violates the FLSA because they are not properly considered
4

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exempt from the overtime provisions of the Act, but yet received no overtime pay.3 Plaintiff
also submits affidavits from other drilling consultants that support his contention that they
were similarly situated in that they were paid according to the same structure and
performed similar duties on well sites. The Court finds that the allegations and evidence
submitted are sufficient to establish that the putative plaintiffs are similarly situated so as
to permit conditional certification.
Defendant

contends

conditional

certification

is

inappropriate

in

this

misclassification case in part because the issue of whether any particular Plaintiff was an
employee of Defendant, rather than an independent contractor, will require an individual
analysis under the economic realities test. See e.g. Baker v. Flint Engineering and Const.
Co., 137 F.3d 1436, 1440 (10th Cir. 1998)(noting that in light of the breadth of the definition
of “employ” under the FLSA, that the status of a person under the FLSA is not limited to
common law concepts of employees or independent contractors, but rather focuses on the
economic realities of the relationship). Adopting district court authority from outside the
Tenth Circuit, Defendant argues that the Court should consider the economic realities test
in conjunction with evidence it submitted and conclude that the putative plaintiffs are not
similarly situated and therefore conditional certification is appropriate.4

  Plaintiff Whitlow and three additional persons who filed notices to opt in submitted affidavits in support of the
instant motion. Therein each alleges that Crescent exercised control over all aspects of his employment, that
Defendant did not require substantial investment by Plaintiff in order for him to perform his work because the client
provided the necessary tools and equipment. Each avers that Crescent secured the clients and that serving as a
drilling consultant requires no specialized training, advanced degree, and they did not exercise discretion in the
performance of their jobs, following the well plan without deviating from establishing policies or procedure. Doc.
No. 30, Exhibits A-D.
4
  There is no Tenth Circuit precedent addressing consideration of the economic realities test at step one of the ad
hoc approach.
3

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Courts are split as to whether the economic realities test should be
utilized when determining whether to conditionally certify a class in an
FLSA action concerning an allegedly wrongful independent contractor
designation. . . . Some courts have held that the economic realities inquiry is
only appropriate at the decertification stage. . . . Other courts have held that
the economic realities test ought to inform the assessment of whether class
members are similar enough to warrant conditional certification. . . .
Tamez v. GHP Billiton Petroleum (Americas), Inc., 2015 WL 7075971 (W.D.Tex. Oct. 5,
2015)(collecting cases). The undersigned agrees with those courts that have concluded the
economic realities inquiry is appropriate at step two of the ad hoc approach, that is in
addressing a motion for decertification. As noted by the court in Carter v. XPO Last Mile,
Inc., 2016 WL 5680464 (N.D.Cal. Oct. 3, 2016):
I am also not persuaded by the analyses of courts that reject conditional
FLSA certification in independent contractor misclassification cases solely
because the independent contractor analysis is fact intensive and because
there are alleged differences between class members (e.g., hours worked,
investments made). If that were the test, no independent contractor
misclassification case could be certified under FLSA. See Demauro v. Limo,
Inc., No. 8:10-CV-413-T-33AEP, 2011 WL 9191, at *3 (M.D. Fla. Jan. 3,
2011) (“the individualized analysis needed to determine whether each driver
is an independent contractor or employee for FLSA purposes precludes class
certification.”); In re FedEx Ground Package Sys., Inc., Employment
Practices Litig., 662 F. Supp. 2d 1069, 1083 (N.D. Ind. 2009) (denying
conditional certification because “the court must take into consideration the
actual history of the parties' relationship, necessitating an individualized
examination of the multiple factors relating to each drivers' employment.”).
Whether there are materially significant differences is best tested at the
“second step” of the FLSA certification process. See, e.g., Gilbert v.
Citigroup, Inc., C-08-0385 SC, 2009 U.S. Dist. LEXIS 18981, * 10, 2009
WL 424320 (N.D. Cal. Feb. 18, 2009) (“Defendants' concern about
individualized inquiries does not require the Court to deny conditional
certification....Under the two-stage certification procedure, Defendants can
present this evidence and make these arguments as part of a motion to
decertify the class once discovery is complete.”).

6

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Id. at *5. The Court finds here that Plaintiff has sufficiently alleged and presented evidence
to support his burden at step one. Each of the identified plaintiffs allege payment at a day
rate, regardless of the number of hours worked in a week. Each putative plaintiff was
engaged by Defendant Crescent Consulting, LLC to serve as drilling consultant and
assigned to the jobsite of a Crescent client. The putative plaintiffs describe their job duties
similarly. Furthermore, as noted in Tamez, “[w]hereas here, Plaintiffs allege that the
compensation scheme is in of itself a violation of the FLSA. No further factual inquiry is
necessary. . . . [L]iability can be determined collectively without limiting the class to a
specific job position.” 2015 WL 7075971, at * 3. Having rejected Defendant’s contention
that the Court should delve into the economic realities test at step one, the Court concludes
that conditional certification is appropriate with regard to those persons engaged as drilling
consultants by Defendant and whose pay is reported via 1099─ that is the consultant was
treated by Defendant as independent contractor. The remaining issues are how broadly
defined the conditional class should be and the timing, content, and method of notice to be
given to putative plaintiffs.
With regard to the breadth of the class, Plaintiff Whitlow contends notice should be
extended to all drilling consultants engaged by Defendant Crescent Consulting, LLC at its
various locations across the United States. Defendant’s alternative to challenging
conditional certification is to argue that the class should be limited to drilling consultants
who worked for Chesapeake, SandRidge, or Samson in Alfalfa, Beckham, Major, Roger
Mills, or Woods County, Oklahoma, or in Barber, Clark, Comanche, Finney or Harper
County, Kansas. Defendant contends this limitation is appropriate because the Plaintiffs
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that have thus far opted in worked for Chesapeake, Samson, and Sandridge in those
locations during the alleged statutory period. Crescent Consulting contends that “Plaintiffs
offer no substantial basis in their brief or their declarations that support the conclusion that
drilling consultants who worked for these operators in other locations or for other operators
in any locations are similarly situated and, thus, should be included among the putative
class.” [Doc. No. 72, p. 21].
In his Reply in support of certification Plaintiff Whitlow attaches excerpts from the
deposition of Colley Andrews, Defendant’s corporate representative. Mr. Andrews
testified that consultants for Crescent Consulting, LLC do not have the option of being W2 employees, but rather must agree to be treated as independent contractors. [Doc. No. 745, p. 63].5 Defendant identified one client, BP, Lower 48, that required drilling consultants
be employees of the company supplying the workers. As a result those persons were
employed by a different entity under the same umbrella of entities. [Id. at 73-74]. Based on
the testimony of Mr. Andrews as well as the opt-in of Larry Henry who worked in Ohio
and West Virginia, the Court finds that Plaintiff has established that the same independent
contractor’s policies were utilized company-wide. “[G]eographic commonality is not
necessary to satisfy the FLSA collective action’s ‘similarly situated’ requirement, so long
as the employees were impacted by a common policy.” McCloud v. McClinton Energy
Grp., L.L.C. 2015 WL 737024, *8 (W.D. Tex. Feb. 20, 2015)(quotation marks omitted
quoting Vargas v. Richardson Trident Co., 2010 WL 370155, at *8 (S.D.Tex. Feb. 22,

 At this juncture the Court makes no findings regarding the status of any individual as an employee of the
Defendant for purposes of the FLSA.  
5

8

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2010)). Thus, “‘if there is reasonable basis to conclude that the same policy applies to
multiple locations of a single company, certification is appropriate.’” Id. (brackets
omitted)(quoting Rueda v. Tecon Servs., 2011 WL 2566072, at *4, 2011 U.S. Dist. LEXIS
69356, at *4 (S.D. Tex. 2011)). The Court finds a reasonable basis to conclude a singular
policy with regard to drilling consultants and a lack of overtime pay, and accordingly,
concurs with Plaintiff’s request for conditional certification of drilling consultants working
on behalf of Crescent Consulting, LLC as independent contractors.  
Once a collective action is conditionally approved, “the court has managerial
responsibility to oversee the joinder of additional parties to assure that the task is
accomplished in an efficient and proper way.” Hoffmann-LaRoche v. Sperling, 493 U.S.
165, 170-71, 110 S.Ct. 482 (1989). “The overarching policies of the FLSA's collective suit
provisions require that the proposed notice provide accurate and timely notice concerning
the pendency of the collective action, so that [putative collective action members] can make
informed decisions about whether to participate.” Whitehorn v. Wolfgang's Steakhouse,
Inc., 767 F. Supp. 2d 445, 450 (S.D.N.Y. 2011) (internal citations and quotations
omitted).Defendant makes objections to both the substance of Plaintiff’s Proposed Notice
and his requested methodology for providing notice to potential plaintiffs. Defendant raises
four specific concerns about the contents of the proposed notice, which the Court shall
address in turn.6

  In his Reply to Plaintiff’s response to Defendant’s request for substantive changes to the notice is limited to the
following: “Crescent’s unreasonable modifications (hundreds) to Whitlow’s Notice forms used throughout the
Nation should be disregarded, and Whitlow’s Notice forms should be approved.” Doc. No. 74, p. 10.  
6

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Defendant first contends the proposed notice is deficient because it fails to inform
potential plaintiffs of the effects of opting into this action, specifically, the potential for
liability to Defendant for its costs should it prevail, and the fact that a plaintiff might have
to travel to Oklahoma City to participate in discovery. Because the Court has agreed with
Mr. Whitlow that a nationwide class is appropriate, the Court agrees with Defendant that
putative plaintiffs should be informed of their obligations to participate actively in the
litigation should they choose to opt in. As such, the Court orders Plaintiff to add the
following to the notice: “While the suit is proceeding, you may be required to provide
information, sit for depositions, and testify in court, and some or all of these activities may
occur in Oklahoma.” See Byard v. Verizon W. Virginia, Inc., 287 F.R.D. 365, 374 (N.D.W.
Va. 2012) (quoting Fisher v. Michigan Bell Telephone Co., 665 F.Supp.2d 819, 829 (E.D.
Mich. 2009); Russell v. Illinois Bell Tele. Co., 575 F.Supp.2d 930 (N.D. Ill. 2008)). The
Court also concurs with Defendant’s request with regard to notifying putative plaintiffs
about the potential that they could be ordered to pay defense costs. 7
Some courts have rejected the argument that fairness and accuracy require
that a notice include a warning about court costs, reasoning that (i) “the FLSA
is silent as to whether prevailing defendants may recover their costs”; and
(ii) “the warning could discourage potential plaintiffs from participating.”
Gieseke v. First Horizon Home Loan Corp., 2006 WL 2919076, at *2, 2006
U.S. Dist. LEXIS 76732, at *6 (citation omitted). More recently, however,
courts have required such warnings, reasoning that, “because some courts
have awarded costs to prevailing defendants in FLSA cases, such an award
‘is clearly possible and is not merely theoretical.’” Wass v. NPC Int'l, Inc.,
2011 WL 1118774, at *8, 2011 U.S. Dist. LEXIS 32761, at *26 (emphasis
in original)(quoting Creten–Miller v. Westlake Hardware, Inc., 2009 WL
2058734, at *4, 2009 U.S. Dist. LEXIS 60393, at *3–4). In Wass v. NPC

  The proposed notice states that “[i]f this case is not successful, you will receive nothing and you will not be
responsible for any of case costs, expenses, or attorneys fees.” Doc. No. 30-4, Appendix 1.  

7

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Int'l, Inc., for example, the United States District Court for the District of
Kansas held that, “because an award of costs is a possibility under the
existing caselaw, potential class members should be informed of that
possibility.” 2011 WL 1118774, at *8, 2011 U.S. Dist. LEXIS 32761, at *26–
27. The court thus required that notice to potential class members in that case
include the following language: “If you do not prevail on your claim, court
costs and expenses (not including [the defendant's] attorney fees) may
possibly be assessed against you.” Wass v. NPC Int'l, Inc., 2011 WL
1118774, at *8, 2011 U.S. Dist. LEXIS 32761, at *27.
Landry v. Swire Oilfield Services, L.L.C., --- F.Supp.3d ---, 2017 WL 1709695, *38
(D.N.M. 2017). The Court concurs with the conclusion reached by the court in Landry,
and therefore orders that Plaintiff remove the language quoted above in footnote 6 and
replace it with: “If this case is not successful, you will receive nothing. Also, if Plaintiffs
lose, they could be responsible for paying court costs and expenses (not including
Defendant's attorneys’ fees).” Specifically informing Plaintiffs they will not be responsible
for Defendant’s attorneys’ fees if not successful but correctly informing them about the
potential for costs under Rule 54 should not unreasonably or unfairly discourage
participation. See Id. at 39.
The Court rejects Defendant’s contention that the Notice should inform opt in
Plaintiffs of their obligation to preserve evidence. Upon their opt in it will be incumbent
on counsel for the Plaintiffs to inform them of their obligation. Failure to preserve evidence
may result in sanctions if the Court finds a plaintiff acted in bad faith in failing to preserve
evidence, but the Court sees no reason to forewarn the putative plaintiffs.
Defendant next contends the notice should be written using neutral language, and
that using the term “employees” through the Proposed Notice improperly suggests that a
finding it was the employer of the drilling consultants is a foregone conclusion. Defendant
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also contends the notice should not include language informing recipients not to contact
Crescent Consulting, LLC, because such language potentially places it at odds with current
drilling consultants or drilling consultants looking for placement. Defendant also suggests
that placement of such a language in a court-approved notice would violate the free speech
rights of notice recipients.
The Court concludes that certain uses of the term “employee” in the Notice can be
changed to “drilling consultant” to more accurately reflect both the posture of the case and
the scope of the collective action. Accordingly, Plaintiff is ordered to make changes to
avoid implying that the Court has concluded that drilling consultants were employees not
independent contractors. On page 1, in the “TO” section, “employed by” should be
stricken. In the final line, the phrase “affected employees” should be changed to state
“affected drilling consultants.” On page 2, “current or former employees” should be
changed to “current or former drilling consultants.” In the second paragraph under the
heading “2. What is This Lawsuit About?” the term “employees” should be changed to
“drilling consultants.” Finally, the paragraph in bold on page 4 indicating that recipients
should not contact Crescent or Crescent’s counsel is unnecessary to fulfill the goal of notice
of the claim to potential plaintiffs and therefore shall be removed.
The Court further concurs with Defendant’s contention that the proposed notice
should be amended to clarify that the Court is impartial. In approving a notice to potential
plaintiffs, the Court must be careful not to create an “apparent judicial sponsorship of the
notice.” Woods v. New York Life Ins., 686 F.2d 578, 581 (7th Cir. 1982). The Seventh
Circuit explained: “we think it improper for the district court to direct that the notice go
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out on its letterhead, over the signature of the clerk of court or other judicial officer”
because “the judicial imprimatur is likely to be misunderstood as a representation that the
suit probably has merit.” Id. Although Plaintiff’s proposed notice is not on the Court's
letterhead, it contains the caption of the case, including on the first page in bold type,
“Court Authorized Notice” and “United States District Court for the Western District of
Oklahoma.” (Doc. No. 30-4, Pls.' App., Ex. 1.). This language could suggest to potential
plaintiffs that the Court has lent its imprimatur to the merits of this case. As the Supreme
Court observed, “[i]n exercising the discretionary authority to oversee the notice-giving
process, courts must be scrupulous to respect judicial neutrality. To that end, trial courts
must take care to avoid even the appearance of a judicial endorsement of the merits of the
action.” Hoffmann-La Roche, 493 U.S. at 174, 110 S.Ct. 482. The Court will permit the
Plaintiff to include the case caption, but orders that phrase “Court Authorized Notice” be
removed from the top and that the following be added to page 1 of the notice instead:
THIS NOTICE AND ITS CONTENT HAS BEEN AUTHORIZED BY
THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA. THE COURT HAS TAKEN NO
POSITION REGARDING THE MERITS OF THIS LAWSUIT.
Plaintiff may remove the similar language from the end of paragraph 1 in light of this
required addition.
The Court further orders change based on its independent review of Plaintiff’s
proposal. Plaintiff should remove “This Court” from the first sentence of paragraph 5, as
there is no basis for stating that the Court prohibits anyone from firing or otherwise

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retaliating against participants. The Court further orders that Plaintiff include the following
at the end of paragraph 7: 
PLEASE DO NOT CONTACT THE COURT REGARDING THIS NOTICE.
The remainder of the proposed notice is substantively appropriate and requires no
amendment, except to the extent necessary to comply with the deadlines set forth herein.
Whitlow requests that the Court (1) authorize his counsel to send notice by mail and
e-mail to putative class members; (2) allow plaintiffs 60 days from the date the notice is
sent to opt-in to the collective action; (3) permit Plaintiff’s counsel to send a reminder
notice to putative class members 20 days after the mailing of the Notice and Consent
Forms. To that end, Plaintiff requests that the Court order Defendant to provide his counsel
with an Excel format spreadsheet containing the full name, last known address, last known
e-mail address and telephone number of the putative class members, as well as the dates
they began and terminated work on behalf of Crescent Consulting, LLC.8 Plaintiff requests
that this information be provided within ten days of this Order and within twenty days of
this Order Plaintiff shall send a copy of the approved notice and consent to putative class
members via First Class U.S. Mail and E-mail. Plaintiff further requests that the Court
order Defendant to post the Notice and Consent forms in an open and obvious location on
all job sites. Plaintiff also seeks permission for counsel to contact putative class member
via telephone should their mailing address prove invalid.

8

  Defendant raises no objection to the request for information in an Excel spreadsheet or to the information sought.  

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With one exception, the Court concurs with the timeline submitted by Plaintiff and
set forth above. Plaintiff may send notice by mail and e-mail. See Prejean v. O’Brien’s
Response Mgmt., Inc., 2013 WL 5960674, at * 10 (E.D. La. Nov. 6, 2013) (granting request
for notice by mail and e-mail to rig workers because “both e-mail and first-class mail [are]
both routine and reasonably calculated to accomplish the broad remedial goals of the notice
provision of the FLSA”). Putative class members will have 60 days from the date notice is
sent to opt-in. 20 days before the deadline to opt-in, Plaintiff’s counsel may send to putative
class members, by mail and e-mail, a reminder notice. Telephonic contact will not be
permitted at this juncture. Defendant shall have its requested 15 days from the date of this
Order to provide Plaintiff’s counsel with the list of all persons who it compensated as
drilling consultants by a day-rate during the three years and 107 days prior to the date of
issuance of the Court’s order on this motion. The list should include each class member’s
(1) name, (2) last known mailing address, (3) last known telephone number, (4) last known
personal e-mail address, and (5) last four digits of his or her social security number. The
Court denies Plaintiffs’ request that Crescent Consulting, LLC be required to post a notice
and opt-in forms at jobsites as testimony reveals the jobsites generally belong to thirdparties, not Crescent, and therefore the ordering of posting is not appropriate. Plaintiff shall
provide a copy of its revised notice to Defendant which shall have twenty-four hours to
comment or raise concerns before the notice may be issued. Defendant may not raise new
issues with the Notice, which shall not deviate from that submitted by Plaintiff to the Court,
except as set forth herein

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For the reasons set forth herein, the Court certifies a collective class of all persons
who served as drilling consultants on behalf of Defendant Crescent Consulting, LLC and
were paid, in full or part, a day-rate without overtime but performed in excess of forty
hours of work in any given week at any time since April 29, 2014.
IT IS SO ORDERED this 14th day of August 2017.

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