Wilson, et al v. Anderson Perforating, LTD d/b/a API Perforating

Filing 35

ORDER GRANTING 14 Motion for Conditional Certification and For Notice to Potential Class Members. Signed by Judge Xavier Rodriguez. (rf)

In the United States District Court
for the
Western District of Texas
MATTHEW WILSON and
JOSHUA TATE
v.

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§
§
§
§

SA-13-CV-148-XR

ANDERSON PERFORATING,
LTD.
ORDER

On this day came on to be considered Plaintiff’s motion for conditional
certification (doc. no. 14).
Background
Plaintiffs bring this FLSA suit on behalf of themselves and other similarly
situated employees pursuant to the “collective action” provisions of 29 U.S.C. §
216(b). Plaintiffs were employed as operators (otherwise known as riggers) for
Defendant. Defendant provides well perforation services to the oil and gas
industry.
Defendant paid its operators, including Plaintiffs, a base hourly rate, plus
overtime at one-and-one-half times their base hourly rate, for hours worked over
40 in a workweek.

In addition, Plaintiffs allege that Defendant paid its

operators, including Plaintiffs, a non-discretionary commission of 2% of the
revenue from each job. Plaintiffs allege that Defendant does not include these

non-discretionary commissions in calculating the employee’s regular or overtime
rates of pay.
Analysis
The FLSA requires employers to pay employees a statutory minimum
hourly wage. For each hour an employee works in excess of 40 hours in a given
week, employers must pay an overtime wage that is at least one and one-half
times the employee's regular rate.
Sums paid to employees in addition to their regular earnings are
considered bonuses. All bonus payments must be included in the regular rate
for purposes of computing overtime unless they can be characterized as
discretionary. See 29 C.F.R. §§ 778.208, 778.211(c). See also 29 U.S.C. § 207(e),
which requires inclusion in the regular rate of all remuneration except seven
specific types of payments, one of which is discretionary bonuses.
Analysis
29 U.S.C. § 216 permits an employee to bring an action against an
employer "[on] behalf of himself ... and other employees similarly situated."
Unlike a Rule 23 class action, in which plaintiffs "opt out" of the class, a § 216
plaintiff must "opt in" to become part of the class. Accordingly, the method
adopted by this Court for determining whether to certify a collective action
under § 216(b)--the Lusardi two-tiered approach--involves a preliminary decision
regarding notice to putative class members. In the first stage, called the notice
stage, the District Court must make an initial determination whether notice of

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the action should be sent to potential class members. This determination is
based solely on the pleadings and affidavits, and the standard is a lenient one
typically resulting in conditional certification of a representative class to whom
notice is sent and who receive an opportunity to "opt in." "The decision to create
an opt-in class under § 216(b), like the decision on class certification under Rule
23, remains soundly within the discretion of the district court." See U.S.C. §
216(b); Lusardi v. Xerox Corp., 118 F.R.D. 351, 359 (D.N.J. 1987); Mooney v.
Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995).
Once conditional certification is granted, the case proceeds through
discovery as a representative action. Mooney, 54 F.3d 1207, 1214. Upon
completion of discovery, the defendant will typically file a motion for
decertification. At this second stage of the analysis, the District Court should
make a factual determination as to whether the putative class members are
similarly situated. If so, then the representative action may proceed; if not, then
the class should be decertified, the opt-in plaintiffs dismissed, and the class
representatives should be allowed to proceed on their individual claims. See
Johnson v. TGF Precision Haircutters, Inc., 319 F.Supp.2d 753, 754-55 (S.D. Tex.
2004).
Plaintiffs’ pleadings are sufficient to allege a violation of the FLSA.
Defendant argues the bonuses were discretionary and thus class certification is
not appropriate. The Court makes no ruling as to whether the bonuses were
discretionary or not at this stage. At this stage, the Court merely notes that

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should Plaintiffs prevail on their argument that the bonuses were nondiscretionary and overtime wages were improperly calculated, this finding would
be applicable to a class of all operators or riggers as further defined below. As
stated above, Defendant may later file any dispositive motion addressing their
claim that the bonuses were discretionary.
For the foregoing reasons, the Court finds that Plaintiffs’ allegations are
sufficient to allow an initial conditional certification of the case as a collective
action. The Class is defined as follows:
All Persons employed by Anderson Perforating, Ltd d/b/a API
Perforating as members of a Well Perforating Crew (commonly
referred to as Operators or Riggers), other than the Crew
Supervisor/Engineer, at any time from February 27, 2010 to
____________ [Date Notice Disseminated] who received bonus and/or
commission payment(s) during his or her employment with API
Perforating.
The Class Notice is modified to read as follows:
What are my options?
You can make a claim for additional wages by completing, signing
and returning the enclosed Consent. If the Court finds in your favor,
you may receive additional wages. If the Court does not find in your
favor, you may receive nothing. To make a claim for additional
wages, you must mail your Consent form so that it is postmarked by
______________ [60 days from mailing of Notices]. Or you may fax
your Consent form on or before [60 days from mailing of Notices].
Your Consent form should be mailed to: The Young Law Firm, P.C.,
1001 South Harrison, Suite 200, Amarillo, TX 79101. Or you may
fax it to [phone]. You may also choose not to make a claim.
If you do not return your Consent form, you will not be a part of this
case. You also have the right to seek advice or representation from
a lawyer of your own choosing.

Conclusion
The Court GRANTS, as modified, Plaintiffs’ Motion for Conditional
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Certification and For Notice to Potential Class Members (docket no. 14).
To facilitate the progression of this case through a final determination of
the collective action status, the Court ORDERS Defendant to provide Plaintiffs
with a list (in computer readable format) of the names and last known addresses
(and the last four digits of their social security number)1 of all individuals
working as operators (as defined above) from February 27, 2010 to the present
within fourteen (14) days of the date of this Order. Upon receipt of said list by
Plaintiffs, Plaintiffs shall send to potential class members the court- approved
notice of this action (as modified by this Order) with a date-specific deadline for
opting-in that is sixty (60) days from the date of the mailing of the notices.
It is so ORDERED.
SIGNED this 3rd day of July, 2013.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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Defendant is not required to provide last known telephone numbers.

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