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Landry v. Swire Oilfield Services, L.L.C.

United States District Court, D. New Mexico

May 2, 2017

EDDIE LANDRY; MARIO CONSTANCIO, JR. and MARK TAMAYO, Plaintiffs,
v.
SWIRE OILFIELD SERVICES, L.L.C. and SWIRE WATER SOLUTIONS, INC., Defendants.

          Daniel M. Faber Law Office of Daniel Faber Albuquerque, New Mexico and Patrick Leyendecker Ahmad Zavitsanos Anaipakos Alavi & Mensing, P.C. Houston, Texas and Udyogi Hangawatte Galvin B. Kennedy Kennedy Hodges L.L.P. Houston, Texas Attorneys for the Plaintiffs

          Charlotte A. Lamont Littler Mendelson, P.C. Albuquerque, New Mexico and Yvette V. Gatling Littler Mendelson, P.C. Houston, Texas Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Plaintiffs' Motion for Conditional Certification, Hoffman La Roche Notice, and Expedited Ruling, filed January 13, 2017 (Doc. 35)(“Motion”). The Court held a hearing on March 23, 2017. The primary issues are: (i) whether the Court should conditionally certify this case as a collective action pursuant to § 216(b) of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”), with respect to two classes of employees who worked for Defendants Swire Oilfield Services, L.L.C. and Swire Water Solutions, Inc. (collectively “Swire Oil”)[1] throughout the United States of America within the last three years, i.e., (a) oilfield manual laborers whom Swire Oil paid on a salary basis without overtime (the “Salary Class”), and (b) oilfield manual laborers whom Swire Oil paid according to the fluctuating workweek method (the “FWW Class”); (ii) whether the Court should approve the Plaintiffs' Proposed Notice and Consent Form, filed January 13, 2017 (Doc. 35-1)(“Notice and Consent Form”); (iii) whether the Court should authorize two mailings of the Notice and Consent Form to all potential Plaintiffs via regular mail, email, and text message and allow class members to execute their consent forms electronically; and (iv) whether the Court should order Swire Oil to produce all potential Plaintiffs' names and known addresses, cellular telephone numbers, and email addresses, so that notice may be implemented. The Plaintiffs request that the Court expedite its consideration of the Motion.

         The Court will grant the requests in the Motion. Specifically, the Court will conditionally certify as a collective action the Salary Class and the FWW Class. The Court approves the proposed Notice and Consent Form, and will authorize notice to all potential Plaintiffs via regular mail, email, and text message. The Court will also require that Swire Oil produce the potential Plaintiffs' names and known contact information so that notice may be implemented as the Plaintiffs request.

         FINDINGS OF FACT

         The central issue that the Motion presents is whether the Court should conditionally certify this case as a collective action pursuant to FLSA § 216(b). See Motion at 1. A § 216(b) certification decision turns on whether a proposed class is comprised of “similarly situated” employees. Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001). The Court's determination as to a particular group of employees' similarity is a finding of fact, see Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 534 (3d Cir. 2012); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008), which the Tenth Circuit reviews for clear error, see Colony Ins. Co. v. Burke, 698 F.3d 1222, 1238 n.21 (10th Cir. 2012)(citing Fed.R.Civ.P. 52(a)(6); Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)). Here, both the Plaintiffs and Swire Oil have submitted briefings on the issue of conditional certification under § 216(b). See Motion; Defendant's [sic] Response Opposing Plaintiffs' Motion for Conditional Certification, Hoffman La Roche Notice, and Expedited Ruling at 1, filed January 27, 2017 (Doc. 37)(“Response”); Plaintiffs' Reply Brief in Support of Their Motion for Conditional Certification, Hoffman La Roche Notice, and Expedited Ruling at 1, filed February 2, 2017 (Doc. 44)(“Reply”). In determining whether to grant conditional certification, the Court has carefully considered all factual assertions that these briefings raise. The Court accepts some factual assertions and rejects others. The Court also liberally judicially notices adjudicative, background facts. See Fed.R.Evid. 201.

         The Court's findings of fact are authoritative only on the question of conditional certification under § 216(b). At the “notice stage, ” before the completion of discovery, the Court uses a lenient “similarly situated” standard, which “requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Thiessen v. General Electric Capital Corp., 267 F.3d at 1102 (brackets, citations, and internal quotation marks omitted). At this stage, the Court “does not weigh the evidence, resolve factual disputes, or rule on the merits” of the plaintiffs' claims. Greenstein v. Meredith Corp., 948 F.Supp.2d 1266, 1267 (D. Kan. 2013)(Robinson, J.)(citation omitted). Certification at this initial stage is thus conditional; after the completion of discovery, the Court “makes a second determination, utilizing a stricter standard of ‘similarly situated.'” Thiessen v. General Electric Capital Corp., 267 F.3d at 1102-03 (citation omitted). Accordingly, after discovery concludes, the parties may relitigate the factual findings that the Court presently makes for purposes of conditional certification.

         1. Overview of the Parties.

         1. Swire Oil provides oilfield services, including oilfield fluid management, to drilling companies around the world, “including virtually every major oil play in the State of New Mexico and the United States.” Original Complaint, Collective Action, Class Action, and Jury Demand ¶ 29, at 6, filed June 21, 2016 (Doc. 1)(“Complaint”).

         2. To assist with the drilling process, Swire Oil employs oilfield manual laborers, i.e., equipment operators, to rig, monitor, and maintain the water transfer and chemical blending equipment that it supplies. See Complaint ¶ 30, at 6.

         3. During the last three years, Plaintiffs Eddie Landry, Mario Constancio, Jr., and Mark Tamayo worked as operators of the equipment that Swire Oil supplied for its clients' hydraulic fracturing (“fracking”) jobs at well sites in the United States. See Complaint ¶¶ 9-11, at 3. See also Motion at 2 (specifying that the Plaintiffs worked on fracking jobs).

         4. Tamayo worked as an operator at well sites located in New Mexico. See Complaint ¶ 11, at 3.

         5. The Plaintiffs seek to represent a nationwide class comprised of all current and former Swire Oil operators “who were paid on a salary basis without overtime in the last three years, ” i.e., the “Salary Class.” Complaint ¶ 54, at 9.

         6. The Plaintiffs also seek to represent a nationwide class comprised of all current and former Swire Oil operators “who were paid under the fluctuating work week method during the last three years, ” i.e., the “FWW Class.” Complaint ¶ 54, at 9.

         7. Finally, Tamayo seeks to represent a class of current and former Swire Oil operators “who worked in New Mexico during the last three years and who were paid under the fluctuating workweek method, ” i.e., the “New Mexico Class.” Complaint ¶ 56, at 10.

         8. Thus far, forty-six current and former Swire Oil operators have noticed their written consent join in this lawsuit. See Motion at 1 (citing Plaintiffs' Notice of Filing Consent at 1-2, filed June 27, 2016 (Doc. 8)(noticing forty individuals' consent to join, including: Bradley Ramsey; Chris Weller; Christopher Wells; Clay Sanderford; David Carroll; David Crager; Duane Burleson; Eric Adkison; Eric Kelly; Ernbie Salinas; Fidencio Vasquez; Garrekk Singleton; George Bryant; George Murphy; Hau Bui; Hugo Valdez; Isaac Ruiz; Ivan Rizo; Jeremy Warren; Jiminsky Evans; John Moy; Jose Gonzalez; Juan Silva; Julio Ramirez; Harvey Keith Cook; Logan Byerly; Louis Walton; Martin Mena; Michael Sutton; Mikah White; Nathan Calderon; Roel Acosta; Sammy Rodriguez; Santos De La Cruz; Sergio Rizo; Shawn Horn; Travis Mearns; Ulysses Dozier; Walter Glasier; and Wayne Hrozek); Plaintiffs' Notice of Filing Consent at 1, filed August 11, 2016 (Doc. 11)(Jessie Brown); Plaintiffs' Notice of Filing Consent at 1, filed September 16, 2016 (Doc. 23)(Michael Musch); Plaintiffs' Notice of Filing Consent at 1, filed November 9, 2016 (Doc. 30)(Johnny McKeever); Plaintiffs' Notice of Filing Consent at 1, filed December 21, 2016 (Doc. 32)(Sergio Perales); Plaintiffs' Notice of Filing Consent at 1, filed February 24, 2017 (Doc. 49)(Phillip Hunter and Christopher Gullett)).

         2. Swire Oil Operators' Job Descriptions.

         9. Although Swire Oil hired operators such as the Plaintiffs under various job titles, all operators had essentially the same primary duties: rigging up, monitoring, maintaining, and rigging down water transfer and chemical blending equipment at oil well sites. See Declaration of Eddie Landry ¶ 2, at 1 (executed January 11, 2017), filed January 13, 2017 (Doc. 35-4)(“Landry Decl.”)(stating that duties included “rig[ging] up jobs, ” “servicing, ” and “maintaining fluid transfer equipment”); Declaration of Michael Sutton ¶ 2, at 1 (executed January 11, 2017), filed January 13, 2017 (Doc. 35-5)(“Sutton Decl.”)(stating that he would “rig up jobs, ” “monitor[] water tank levels, ” and “rig down equipment”); Declaration of Isaac Ruiz ¶ 2, at 1 (executed January 13, 2017), filed January 13, 2017 (Doc. 35-6)(“Ruiz Decl.”)(“rigging up and rigging down jobs” and “maintenance on wellsite equipment”); Declaration of Roel Acosta ¶ 2, at 1 (executed January 12, 2017), filed January 13, 2017 (Doc. 35-7)(“Acosta Decl.”)(“maintaining water transfer equipment, ” “rigging up and down jobs, ” and “monitor[ing] water levels”); Declaration of Juan Silva ¶ 2, at 1 (executed January 12, 2017), filed January 13, 2017 (Doc. 35-8)(“Silva Decl.”)(“maintaining water transfer or chemical blending equipment, ” “rigging up and down jobs, ” and “mak[ing] sure equipment was well kept and ready for use”); Declaration of Mario Constancio ¶ 2, at 1 (executed January 12, 2017), filed January 13, 2017 (Doc. 35-9)(“Constancio Decl.”)(“maintaining water and fluid transfer equipment, ” “rigging up and rigging down jobs, ” and “mak[ing] sure equipment was well kept and ready for use”); Declaration of Harvey Keith Cook ¶ 2, at 1 (executed February 10, 2017), filed February 10, 2017 (Doc. 44-1)(“Cook Decl.”)(“maintaining fluid transfer equipment”).

         10. All operators' positions were “physically intense, ” Landry Decl. ¶ 2, at 1; Sutton Decl. ¶ 2, at 1; Ruiz Decl. ¶ 2, at 1; Acosta Decl. ¶ 2, at 1; Silva Decl. ¶ 2, at 1; Constancio Decl. ¶ 2, at 1; Cook Decl. ¶ 2, at 1, requiring them to continuously move around jobsites to “check the frack tanks, check the fluids, and make sure pressure was sustained in accordance with [Swire Oil] procedures, ” Landry Decl. ¶ 2, at 1.

         11. Swire Oil operators such as the Plaintiffs commonly worked “in excess of 12 hours a day, often more than 90 hours a week” and were “commonly called upon to work day after day with little rest.” Complaint ¶ 31, at 6.

         12. Swire Oil operators all worked long hours on extended rotations, resulting in many weeks where they logged substantial hours of overtime. See Landry Decl. ¶ 4, at 1 (“I regularly worked 100 hours or more hours per workweek, ” “typically work[ed] 13 to 18 hours a day, ” and “worked on a 20 days on, 10 days off schedule”); Sutton Decl. ¶ 4, at 2 (“I regularly worked 120 or more hours per workweek, ” “typically work[ed] 14 to 16 hours a day but sometimes worked 24 hour or longer shifts, ” and “worked on a 20 days on, 10 days off schedule”); Ruiz Decl. ¶ 4, at 2 (“I regularly worked 80 or more hours per workweek, ” “typically work[ed] 12 to 16 hours a day, ” and “worked on a 20 days on, 10 days off schedule”); Acosta Decl. ¶ 4, at 1 (“I regularly worked 120 or more hours per workweek, ” “typically work[ed] 14 to 16 hours a day, ” and “worked on a 20 days on, 10 days off schedule”); Silva Decl. ¶ 4, at 2 (“I regularly worked 120 or more hours per workweek, ” “typically work[ed] 14 to 16 hours a day, ” and “worked on a 20 days on, 10 days off schedule”); Constancio Decl. ¶ 4, at 2 (“I regularly worked 80 or more hours per workweek, ” “frequently worked 21 hours a day, ” and “worked on a 20 days on, 10 days off schedule”); Cook Decl. ¶ 3, at 1 (“I regularly worked 84 or more hours per workweek” and “would typically work 13 to 18 hours a day”).

         13. Shifts at well sites began as early as 4:30 a.m. and often lasted until 7:30 p.m. or later. See Silva. Decl. ¶ 2, at 1.

         14. Some operators' extended shifts lasted up to 56 hours. See Sutton Decl. ¶ 2, at 1.

         15. Swire Oil typically scheduled its operators to work continuously for three consecutive weeks, followed by one week off. See Landry Decl. ¶ 5, at 2; Sutton Decl. ¶ 5, at 2; Ruiz Decl. ¶ 5, at 2; Acosta Decl. ¶ 5, at 2; Silva Decl. ¶ 5, at 2; Constancio Decl. ¶ 5, at 2.

         16. Swire Oil's “schedules not only resulted in high numbers of overtime hours worked per week, they also cause[d] many workers' salaries to dip below the minimum wage for all hours worked.” Motion at 3 (alteration added)(citing Ruiz Decl. ¶ 5, at 2; Earnings Statements for Isaac Ruiz at 1-2, filed January 13, 2017 (Doc. 35-2)(“Ruiz Paystubs”); Earnings Statement for Mario Constancio at 1, filed January 13, 2017 (Doc. 35-3)(“Constancio Paystub”)).

         17. Operators in the proposed classes were lower-level employees and not managers; they reported to jobsites as Swire Oil instructed, followed relevant policies and procedures that pertained to the particular jobsite, and followed clients' instructions regarding how work was to be performed. See Complaint ¶¶ 34-38, at 7. See also Landry Decl. ¶ 7, at 2 (“I did not have the authority to hire and/or fire any employees” and “did not make decisions . . . regarding how or when a job was to be performed, ” but “instead reported to a jobsite as [Swire Oil] instructed, ” “followed [Swire Oil's and its clients'] safety policies and procedures, ” and “followed [clients'] instructions . . . about how a job was to be performed”); Sutton Decl. ¶ 7, at 2 (same); Ruiz Decl. ¶ 7, at 2 (same); Acosta Decl. ¶ 7, at 2 (same); Silva Decl. ¶ 7, at 2 (same); Constancio Decl. ¶ 7, at 2 (same); Cook Decl. ¶ 6, at 2 (same).

         3. Swire Oil's Compensation Structures.

         18. As of late 2013, Swire Oil classified “nearly all, ” Motion at 4, operators as exempt from the FLSA's overtime pay requirements, and paid them on a flat salary basis or on a salary basis with a day rate payment for each day spent in the field, see Complaint ¶¶ 33-39, at 6-7.

         19. Swire Oil paid operators such as Landry under this compensation system. See Landry Decl. ¶ 5, at 2.

         20. Several employees sued Swire Oil for using this system and, in response, Swire Oil changed some of its workforce to non-exempt status in late 2013 and early 2014. See Ruiz Decl. ¶ 5, at 2.

         21. For most of 2014, Swire Oil's “entry level, manual labor employees received hourly pay with overtime.” Motion at 4 (citing Ruiz Decl. ¶ 5, at 2).

         22. Some job titles, however, remained misclassified as exempt. See Sutton Decl. ¶ 2, at 1.

         23. Sutton, for example, performed identical manual labor duties when he was a water transfer “supervisor” as when he was a transfer “technician.” Sutton Decl. ¶ 2, at 1.

         24. These operators, along with the operators that Swire Oil initially classified as exempt, constitute the Salary Class. See Motion at 4.

         25. Beginning in late 2014, Swire Oil transitioned salaried operators -- the same operators that it recently re-classified -- off a flat salary basis, and paid them overtime under the FWW method. See Complaint ¶ 40, at 7; Motion at 4.

         26. Among the operators that Swire Oil transitioned to the FWW method were Constancio, Tamayo, and Ruiz. See Complaint ¶ 40, at 7; Ruiz Decl. ¶¶ 4, 8, at 2.

         27. Swire Oil compensated operators working in New Mexico, such as Tamayo, under the FWW method. See Complaint ¶ 42, at 8.

         28. Several operators compensated under this method, such as Constancio and Ruiz, experienced numerous weeks in which their salaries fell below the $7.25 per hour minimum wage rate. See Constancio Paystub at 1; Ruiz Paystubs at 1-2.

         29. Constancio, for example, was paid an hourly rate of $5.04 during the pay period beginning January 1, 2014. See Constancio Paystub at 1.

         30. Ruiz was paid an hourly rate of $6.77 during the pay period beginning August 30, 2015, and an hourly rate of $6.35 during the pay period beginning December 6, 2015. See Ruiz Paystubs at 1-2.

         31. Some operators “never received any notice at all that Swire changed their pay method.” Motion at 6.

         32. Ruiz, for example, found out about the change when he received his first paycheck under the FWW method and complained to his manager that his paycheck was missing pay. See Ruiz Decl. ¶ 5, at 2.

         33. Ruiz never received formal documentation explaining the change to the FWW method. See Ruiz Decl. ¶ 5, at 2.

         PROCEDURAL BACKGROUND

         In ruling on a collective action certification motion, the Court does not accept as true the facts alleged in the pleadings, but must find all facts bearing on the question of certification, even if those facts also bear on the merits of the substantive claims. The Court is cognizant that it must not decide the merits at this stage of the case and expressly does not decide the case's merits. The above findings of fact are tentative and made solely to allow the Court to determine whether conditional certification under FLSA § 216(b) is appropriate. See Thiessen v. General Electric Capital Corp., 267 F.3d at 1102-03.

         The Court will outline the basic allegations underlying the Plaintiffs' case. The Court will then discuss the Motion and its responsive briefings. Finally, the Court will discuss the March 23, 2017, hearing that it held regarding certification. The Court will later make conclusions of law to rule on the Motion.

         1. The Complaint.

         1. On June 21, 2016, the Plaintiffs commenced this suit as a proposed collective action pursuant to FLSA § 216(b) and as a proposed class action pursuant to rule 23 of the Federal Rules of Civil Procedure. See Complaint ¶¶ 47-65, at 8-12.

         2. With respect to the FLSA, the Plaintiffs bring this suit on behalf of two proposed classes: (i) the Salary Class, i.e., “[a]ll of Defendants' current and former operators throughout the United States who were paid on a salary basis without overtime in the last three years”; and (ii) the FWW Class, i.e., “[a]ll of Defendants' current and former operators throughout the United States who were paid under the fluctuating work week method during the last three years.” Complaint ¶ 54, at 9.

         3. The Plaintiffs allege that the potential Salary Class members are similarly situated to Landry “in that they share the same duties and were subject to Swire's policies of misclassifying non-exempt employees as salaried exempt, ” and that the FWW Class members are similarly situated to Constancio and Tamayo “in that they share the same duties and were subject to Swire's polices of . . . paying overtime under a non-compliant FWW system.” Complaint ¶ 49, at 9.

         4. The Plaintiffs assert two causes of action against Swire Oil on behalf of the Salary Class and the FWW Class: (i) failure to pay overtime, in violation of FLSA § 207 (Count I), see Complaint ¶¶ 66-74, at 12-13; and (ii) failure to pay the minimum wage, in violation of FLSA § 206 (Count II), see Complaint ¶¶ 75-82, at 13-14. The Complaint indicates that the Plaintiffs will seek to certify Counts I and II as collective actions pursuant to FLSA § 216(b). See Complaint ¶ 74, at 13 (Count I); id. ¶ 82, at 14 (Count II).

         5. As to the Complaint's rule 23 class-action allegations, Tamayo asserts overtime claims under the New Mexico Minimum Wage Act, N.M. Stat. Ann. §§ 50-4-1 to -30 (“NMMWA”), on behalf of the New Mexico Class, i.e., “[a]ll current and former operators of Defendants who worked in New Mexico during the last three years and who were paid under the fluctuating workweek method.” Complaint ¶ 56, at 10.

         6. The Complaint alleges that the “FWW method is illegal under New Mexico law, ” because the NMMWA “requires payment of one and one-half times the employee's regular rate for each hour worked per week over 40 hours.” Complaint ¶ 85, at 14 (citing N.M. Stat. Ann. § 50-4-22(D)).

         7. The Complaint thus asserts a cause of action against Swire Oil for failure to pay overtime, in violation of NMMWA § 50-4-26(C)-(E) (Count III). See Complaint ¶¶ 83-88, at 14-15.

         The Complaint indicates that the Plaintiffs will seek to certify Count III as a class action under rule 23. See Complaint ¶ 88, at 15.

         2. The Motion.

         8. On January 13, 2017, the Plaintiffs moved to conditionally certify this case as a collective action pursuant to FLSA § 216(b). See Motion at 1. The Plaintiffs seek certification on behalf of themselves, and on behalf of all potential Salary Class and FWW Class members, including the forty-six individuals who have already noticed their written consent to join in this litigation should the Court certify it as a § 216(b) collective action. See Motion at 1.

         9. The Plaintiffs attach a proposed Notice and Consent Form, and request that the Court authorize two mailings of that form to all potential Salary Class and FWW Class members by regular mail, email, and text message to allow them an opportunity to join this litigation. See Motion at 1.

         10. The Plaintiffs request, further, that the Court order Swire Oil to produce the potential Salary Class and FWW Class members' names and known contact information, so that notice may be implemented in the manner that they propose. See Motion at 1.

         11. The Court divides its discussion of the Motion into four sections. First, the Court reviews the Plaintiffs' allegations as to the illegality of Swire Oil's salary and FWW compensation structures. Second, the Court discusses the Plaintiffs' arguments regarding conditional certification under § 216(b)'s collective-action mechanism, specifically whether the proposed classes' members are “similarly situated” as that section requires. Third, the Court reviews the Plaintiffs' arguments regarding their proposed Notice and Consent Form. Fourth, and finally, the Court briefly considers the Plaintiffs' request that the Court expedite its consideration of the Motion.

         a. Swire Oil's Compensation Structures.

         12. The Plaintiffs argue that, as of late 2013, Swire Oil “illegally misclassified” nearly all of its oilfield manual laborers as exempt from the FLSA's overtime requirements, and paid them on a salary basis. Motion at 4. According to the Plaintiffs, this classification was illegal, because the FLSA does not provide an overtime pay exemption for low-level field employees such as Swire Oil operators. See Motion at 4.

         13. The Plaintiffs contend that, beginning in late 2014, Swire Oil paid hourly workers overtime under the FWW method. See Motion at 4 (citing 29 C.F.R. § 778.114). The Plaintiffs aver that Swire Oil's use of this compensation structure was illegal, because Swire Oil “failed to properly satisfy the requirements to utilize the fluctuating workweek method.” Motion at 4.

         14. Specifically, the Plaintiffs argue that “there was no clear mutual understand[ing] between [] Swire and its employees concerning the fluctuating workweek” method as the regulations governing the FWW method require. Motion at 5 (relying on 29 C.F.R. § 778.114(a)(2)). The Plaintiffs reason that “there were numerous weeks when the salary of the Plaintiffs fell below the minimum wage rate” and that, accordingly, a clear mutual understanding as to Swire Oil's FWW method was not possible, because it would be “contrary to law and public policy” for workers to “agree[] to be paid less than the minimum wage for all hours worked.” Motion at 6 (relying on Ruiz Paystubs at 1-2; Constancio Paystub at 1).

         15. The Plaintiffs also contend that the “Plaintiffs and the FWW Class Members were not paid a salary sufficient to compensate them at the minimum wage rate for every hour they worked” as the regulations governing the FWW method require. Motion at 5 (relying on 29 C.F.R. § 778.114(a)(4)).

         b. Conditional Certification Under § 216(b).

         16. Turning to their conditional certification arguments, the Plaintiffs note that employees wishing to pursue FLSA claims under § 216(b)'s collective-action mechanism must opt into the case in writing. See Motion at 7 (citing 29 U.S.C. § 216(b)). Thus, the Plaintiffs note, potential Plaintiffs must obtain notice as to the pending collective action so that they can decide whether to participate in it. See Motion at 7 (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989)).

         17. The Plaintiffs note that the FLSA authorizes notice only to “similarly situated” members of a proposed class. Motion at 7 (citing 29 U.S.C. § 216(b); Bustillos v. Bd. of Cnty. Comm'rs of Hidalgo Cnty., 310 F.R.D. 631, 662 (D.N.M. 2015)(Browning, J.)). The Plaintiffs aver that similarity is a low bar, and that, here, they “have satisfied the burden by demonstrating sufficient facts to suggest that Plaintiffs and the class ‘were the victims of a single corporate decision, policy, or plan.'” Motion at 7 (quoting Thiessen v. General Electric Capital Corp., 267 F.3d at 1102). Thus, the Plaintiffs request that the Court conditionally certify the proposed FWW Class and Salary Class, and authorize notice to all similarly situated potential Plaintiffs. See Motion at 14.

         18. The Plaintiffs advance two primary arguments regarding conditional certification under § 216(b).

         19. First, the Plaintiffs argue that the United States Court of Appeals for the Tenth Circuit has adopted a “lenient, ad hoc standard” for determining whether a proposed class' members are similarly situated. Motion at 8 (relying on Thiessen v. General Electric Capital Corp., 267 F.3d at 1105)). The Plaintiffs contend that this standard entails a two-step process, beginning in the notice stage with an initial determination whether a plaintiff is similarly situated to other potential class members. See Motion at 8-9 (relying on Bustillos v. Bd. of Cnty. Comm'rs of Hidalgo Cnty., 310 F.R.D. at 662-63). The Plaintiffs argue that this standard requires only that a plaintiff “describe the potential class within reasonable limits and provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist.” Motion at 9 (quoting Schwed v. Gen. Elec. Co., 159 F.R.D. 373, 375-76 (N.D.N.Y. 1995)(Hurd, J.))(internal quotation marks omitted).

         20. At the notice stage, they aver, the court “‘does not weigh the evidence, resolve factual disputes, or rule on the merits of plaintiffs' claims.'” Motion at 9 (quoting Greenstein v. Meredith Corp., 948 F.Supp.2d at 1267 (citation omitted)). Further, they state, if proposed class members are employees with similar positions, allegations that the defendants “‘engaged in a pattern or practice of not paying overtime [are] sufficient to allege that plaintiffs were together the victims of a single decision, policy or plan.'” Motion at 10 (alteration added)(quoting Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. 431, 433-34 (D. Kan. 2007)(Vratil, J.)(citation omitted)). In short, the Plaintiffs contend that, at the notice stage, courts determine similarity by examining (i) whether “the proposed class includes employees with similar positions”; and (ii) whether the “defendants had a single decision, policy, or plan to not pay class members overtime.” Motion at 10 (citing Foster v. Nova Hardbanding, LLC, 2016 U.S. Dist. LEXIS 53426, at *7 (D.N.M. 2016)(Garza, J.)).

         21. According to the Plaintiffs, courts should not consider a claim's merits until the second stage, which “occurs at the close of discovery, after all potential plaintiffs have opted in the action.” Motion at 10 (citing Thiessen v. General Electric Capital Corp., 267 F.3d at 1103). At that stage, the Plaintiffs argue, courts use a “stricter standard to determine whether the class is ‘similarly situated' and may therefore proceed to trial as a collective action.” Motion at 10.

         22. The Plaintiffs stress that, before the second stage, a court “simply evaluates ‘the substantial allegations of the complaint along with any supporting affidavits or declarations.'” Motion at 10-11 (quoting Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. at 434 (citing Thiessen v. General Electric Capital Corp., 267 F.3d at 1102). Indeed, the Plaintiffs note, “the Tenth Circuit has held that a district court should not address the merits of an underlying FLSA claim when ruling on a procedural request for collective action certification.” Motion at 11 (relying on Thiessen v. General Electric Capital Corp.).

         23. Here, at the notice stage, the Plaintiffs contend that they have made sufficiently “substantial allegations” that the FWW Class members are similarly situated. Motion at 12 (relying on Ruiz Decl.; Constancio Decl.; Silva Decl.; Acosta Decl.). The Plaintiffs maintain that the FWW Class includes workers in substantively similar positions entailing “similar job duties as oilfield manual laborers” as well as “physically intense” duties such as “rigging up, rigging down, maintaining, and monitoring water and fluid transfer equipment at well sites.” Motion at 12 (citing Ruiz Decl. ¶ 2, at 1; Acosta Decl. ¶ 2, at 1; Silva Decl. ¶ 2, at 1; Constancio Decl. ¶ 2, at 1). That the potential FWW Class members' job titles and levels of responsibility vary somewhat is immaterial, the Plaintiffs argue. See Motion at 13. The Plaintiffs contend, moreover, that the potential FWW Class members “were victims of a single decision, plan, or policy -- Swire's decision to change their compensation.” Motion at 13. The Plaintiffs avow that “[c]ourts regularly find evidence of an identifiable corporate level policy for calculating compensation support class certification in FLSA cases.” Motion at 14. Thus, here, the Plaintiffs contend, “because all the FWW class members were subject to the same allegedly improper method of calculating their overtime . . . they are similarly situated regardless of the individual rates of pay, minor differences in their job duties, or any other subtle factual distinctions.” Motion at 14-15.

         24. The Plaintiffs also assert that they have made “substantial allegations” that the Salary Class members are similarly situated. Motion at 15 (relying on Landry Decl.; Sutton Decl.; Ruiz Decl.). As with the FWW Class, the Plaintiffs contend that the proposed Salary Class includes employees with substantively similar job duties including “rigging up and monitoring fracking equipment that pumped and controlled the flow of waters and chemicals at well sites.” Motion at 16 (citing Landry Decl. ¶ 2, at 1; Sutton Decl. ¶ 2, at 1; Ruiz Decl. ¶ 2, at 1). The Plaintiffs likewise maintain that “[a]rtificial differences in job titles or other employer classifications do not control over Plaintiffs' actual job duties.” Motion at 16. With respect to Swire Oil's alleged “decision, plan, or policy” regarding the Salary Class' compensation, the Plaintiffs say that “Swire made a company-wide decision to classify nearly all of its oilfield manual laborers as exempt from overtime.” Motion at 18. In the Plaintiffs' view, courts routinely “certify a class based on allegations that Defendants classified the putative class members as exempt from overtime and failed to pay them overtime for hours over 40 worked in a week.” Motion at 17 (citing Koehler v. Freightquote.com, Inc., 93 F.Supp.3d 1257, 1264 (D. Kan. 2015)(Crabtree, J.)). Thus, here, the Plaintiffs argue, “differences in compensation, location of employment, or experience level will not defeat conditional certification, ” because they have alleged “a company-wide decision to misclassify workers as exempt and not pay overtime.” Motion at 17-18 (relying on Gieseke v. First Horizon Home Loan Corp., 2006 U.S. Dist. LEXIS 76732, at *2 (D. Kan. 2006)(Murguia, J.)).

         25. Second, the Plaintiffs contend that they have proffered evidence that is “more than sufficient to justify conditional certification for both proposed classes.” Motion at 14. Here, they assert, “each of the declarants supporting certification states he has spoken to other employees who have confirmed that they were paid according to the fluctuating workweek and believed there were weeks when they made below the minimum wage.” Motion at 18 (citing Landry Decl. ¶ 9, at 3; Sutton Decl. ¶ 9, at 3; Ruiz Decl. ¶ 9, at 3; Acosta Decl. ¶ 9, at 3; Silva Decl. ¶ 9, at 3; Constancio Decl. ¶ 9, at 3). They posit that “[o]ther courts weighing evidence and allegations have granted class notice with far less evidence than Plaintiffs have presented in this motion.” Motion at 18 (citing Brown v. Money Tree Mortg., Inc., 222 F.R.D. 676, 680 (D. Kan. 2004)(Lungstrum, J.); Williams v. Sprint/United Mgmt. Co., 222 F.R.D. 483, 487 (D. Kan. 2004)(Lungstrum, J.); Reab v. Elec. Arts, Inc., 214 F.R.D. 623, 628 (D. Colo. 2002)(Babcock, J.)).

         26. The Plaintiffs contend, moreover, that “[p]ersonal knowledge of how other employees were subject to the same illegal pay policy based on conversations with other workers provide substantial allegations that the putative class members were victims of a single decision, policy, or plan.” Motion at 18. Here, they aver, they “not only present the court with six declarations detailing their allegations about Swire's fluctuating workweek and salary policies, they also point to over 40 Plaintiffs who have already filed opt-in consents joining this litigation to pursue their claims against Swire.” Motion at 18 (citing Landry Decl. ¶ 8, at 2; Sutton Decl. ¶ 8, at 2; Ruiz Decl. ¶ 8, at 2; Acosta Decl. ¶ 8, at 2; Silva Decl. ¶ 8, at 2; Constancio Decl. ¶ 8, at 2).

         c. The Proposed Notice and Consent Form.

         27. The Plaintiffs attach to the Motion a proposed Notice and Consent Form that briefly describes this case, instructs potential Plaintiffs on how to opt into the case, explains that the FLSA prohibits retaliation for participating in the case, and describes the effects of joining the case. See Notice and Consent Form at 1-3.

         28. The Plaintiffs contend that the Notice and Consent Form is “timely, accurate, and informative” as the Supreme Court of the United States of America requires. Motion at 19 (citing Hoffmann-La Roche v. Sperling, 493 U.S. at 172 (internal quotation marks omitted). The Plaintiffs explain that the Notice and Consent Form “provides accurate notice of the pendency of the action and of the opportunity to opt in” and makes “no comments on the merits of the case.” Motion at 19-20. They assert, moreover, that it “provides clear instructions on how to opt-in and accurately states the prohibition against retaliation for participating in a FLSA action.” Motion at 20 (citing 29 U.S.C. § 215(a)(3)). Accordingly, they assert, “the proposed notice achieves the goal of providing employees accurate and timely notice concerning the pendency of the lawsuit, and should be adopted.” Motion at 20.

         29. The Plaintiffs add that the Notice and Consent Form “mirrors judicial notice forms that have been approved by other federal courts, including the forms approved by the District of New Mexico . . . .” Motion at 19 (relying on Saenz v. Rod's Prod. Servs., 2015 U.S. Dist. LEXIS 177697 (D.N.M. 2015)(Brack, J.)).

         30. To ensure that the Notice and Consent Form reaches all potential Plaintiffs, the Plaintiffs request that the Court order Swire Oil to

produce within ten (10) days of the granting of this Motion in an electronic format such as an excel spreadsheet the names, all known addresses, all phone numbers (home, mobile, etc.), dates of birth, all known email addresses (work and personal), and dates of employment for all the class members employed from three years prior to the filing of this lawsuit to the present.

Motion at 20. The Plaintiffs assert that “[t]his information will allow Plaintiffs to confirm current addresses and/or to locate those persons who may have moved from their last known addresses.” Motion at 20.

         31. In addition, the Plaintiffs request that the Court authorize that the Notice and Consent Form “be sent by first class mail, by electronic mail, and by text message within seven (7) days of receiving the class list from Defendants.” Motion at 20. The Plaintiffs propose that their “counsel will oversee the mailing . . . of ...


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