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Olivas v. C & S Oilfield Services, LLC

United States District Court, D. New Mexico

April 27, 2018

A.J. OLIVAS, individually and on behalf of those similarly situated, Plaintiff,

          J. Derek Braziel Travis Andrew Gasper Jesse Hamilton Forester Lee & Braziel LLP Dallas, and Jack L. Siegel Siegel Law Group PLLC Dallas, Texas Attorneys for the Plaintiff

          Clara B. Burns Kemp Smith LLP El Paso, Texas Attorneys for the Defendants


         THIS MATTER comes before the Court on the Plaintiffs' Motion for Notice to Potential Plaintiffs and Conditional Certification, filed April 11, 2017 (Doc. 16)(“Notice Motion”). The Court held a hearing on January 25, 2018. The primary issue is whether Plaintiff A.J. Olivas' proposed class members are similarly situated such that the Court should authorize providing them notice of their right to opt in to Olivas' collective action against Defendants C & S Oilfield Services, LLC, Dewey Coffman, and Brett Coffman (collectively, “C&S Oilfield”) under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”). The Court concludes that Olivas' allegations and proposed class members' affidavits establish that he and the proposed class members are similarly situated. Accordingly, the Court grants the Notice Motion and authorizes Olivas to notify the proposed class of his collective action.


         C&S Oilfield is a Louisiana-based company that “provid[es] water transfer and other . . . services” to New Mexico oilfields. Collective Class Action Complaint ¶ 18, at 4, filed January 9, 2017 (Doc. 1)(“Complaint”). D. Coffman and B. Coffman are C&S Oilfield' owners. See Complaint ¶¶ 8-9, at 3. Olivas worked for C&S Oilfield “operat[ing] . . . oilfield equipment, completing daily checklists, and performing other manual/technical labor at oilfield sites.” Complaint ¶ 19, at 5. According to affidavits, Olivas and other C&S Oilfield employees regularly worked over eighty hours per week but did not receive overtime pay. See Complaint ¶ 20, at 5-6; 28 U.S.C. § 1746 Declaration and Consent of A.J. Olivas in Support of Proceeding as a Collective Action ¶ 4, at 2 (dated January 25, 2017), filed April 11, 2017 (Doc. 16-3) (“Olivas Aff.”); 28 U.S.C. § 1746 Declaration and Consent of Eric Holloway in Support of Proceeding as a Collective Action ¶ 4, at 2 (dated January 25, 2017), filed April 11, 2017 (Doc. 16-4)(“Holloway Aff.”); 28 U.S.C. § 1746 Declaration and Consent of Joseph Wright in Support of Proceeding as a Collective Action ¶ 4, at 2 (dated January 25, 2017), filed April 11, 2017 (Doc. 16-5)(“Wright Aff.”); 28 U.S.C. § 1746 Declaration and Consent of Michael Ward in Support of Proceeding as a Collective Action ¶ 4, at 2 (dated January 25, 2017), filed April 11, 2017 (Doc. 16-6)(“Ward Aff.”); 28 U.S.C. § 1746 Declaration and Consent of Wayne Reinhart in Support of Proceeding as a Collective Action ¶ 4, at 2 (dated January 25, 2017), filed April 11, 2017 (Doc. 16-7)(“Reinhart Aff.”); 28 U.S.C. § 1746 Declaration and Consent of Roman Lambertt in Support of Proceeding as a Collective Action ¶ 4, at 2 (dated January 25, 2017), filed April 11, 2017 (Doc. 16-8)(“Lambertt Aff.”).


         In the Complaint, Olivas alleges that C&S Oilfield did not pay him or other workers overtime pay. See Complaint ¶¶ 2-3, at 1-2. He brings a class action under rule 23(b)(3) of the Federal Rules of Civil Procedure for C&S Oilfield's alleged violation of the New Mexico Minimum Wage Act, N.M. Stat. Ann. § 50-4-22(D) (“NMMWA”). See Complaint ¶ 5, at 2. He also brings a FLSA collective action against Oilfield Services. See Complaint ¶ 6, at 2-3. In the Defendants' Answer to Collective and Class Action Complaint, filed March 29, 2017 (Doc. 9) (“Answer”), C&S Oilfield asserts several affirmative defenses: (i) Olivas and the putative class have failed to state a claim upon which relief can be granted; (ii) it paid its workers what they were owed, and it acted in good faith to comply with and in fact did not violate applicable law; (iii) Olivas' action should not be a collective or class action; (iv) Olivas is not similarly situated with the putative class members; (v) “any alleged violation would be subject to the de minimus doctrine”; (vi) Olivas and the proposed class did not work more than forty hours during any week; (v) Olivas and the proposed class have failed to mitigate their damages; (vi) it is entitled to “set off and/or credit for any amounts earned in mitigation”; (vii) it had no knowledge or reason to know that Olivas and the putative class worked in excess of forty hours per week; (viii) the statute of limitations and/or the doctrine of laches bars some or all of the claims against it; (ix) if Olivas and the putative class are entitled to overtime pay, “they would be entitled to overtime premium only”; and (x) Olivas lacks standing. Answer ¶¶ 36-50, at 4-5.

         1. The Notice Motion.

         In the Notice Motion, Olivas asks that the Court permit Olivas to issue a notice to “a limited group of Defendants' current and former employees” so that they can decide whether to opt in to Olivas' collective action pursuant to 29 U.S.C. § 216(b). Notice Motion at 1-2. Olivas defines the target group as “[a]ll field personnel employed by Defendants over the last three years who received pay on a salary basis. This Definition includes, but is not limited to, . . . positions referred to by Defendants as field hands, lead hands, water transfer technicians, crew leaders, laborers, crewmembers, tank hands, and team leaders.” Notice Motion at 4. Olivas asserts that, for a court to permit a plaintiff to send out a FLSA collective action notice, a plaintiff needs to make substantial allegations or to provide some factual support that there is a basis for a collective action. See Notice Motion at 6. Olivas argues he has met that standard by providing six sworn statements from him and other C&S Oilfield employees who aver that they and others performed similar work as Olivas performed and were also not paid for overtime. See Notice Motion at 6-9 (citing Olivas Aff. ¶ 4, at 2; Holloway Aff. ¶ 4, at 2; Wright Aff. ¶ 4, at 2; Ward Aff. ¶ 4, at 2; Reinhart Aff. ¶ 4, at 2; Lambertt Aff. ¶ 4, at 2). Olivas also asks the Court to order C&S Oilfield to provide to Olivas the names and contact information for putative class members. See Notice Motion at 9.

         2. The Response.

         C&S Oilfield responds. See Defendant's Response to Plaintiff's Motion for Notice to Potential Plaintiffs and Conditional Certification, filed April 24, 2017 (Doc. 19)(“Response”). C&S Oilfield argues that Olivas' proposed class is too broad, because it “disregards the duties and level of responsibility of the various job titles and positions as well as the location where such work was performed.” Response at 3. C&S Oilfield notes that Olivas' affidavits feature sworn statements from lead hands, a tank hand, a hand, and a water transfer technician, but there are no sworn statements or other evidence showing that crew leaders, laborers, crew members, and team leaders are similarly situated to Olivas. See Response at 4. C&S Oilfield also argues that Olivas' request for workers' names and contact information is too broad, and that it should only be required to provide that information for workers who performed the same jobs as Olivas and the workers who provided affidavits. See Response at 4.

         3. The Reply.

         Olivas replies. See Plaintiffs' Reply in Support of Motion for Notice to Potential Plaintiffs and Conditional Certification, filed April 28, 2017 (Doc. 22)(“Reply”). Olivas argues that the six sworn statements demonstrate that C&S Oilfield's policy to not pay overtime “applied to all personnel paid on a salary basis regardless of duties, location or official title.” Reply at 2 (emphasis omitted). Olivas contends that the six sworn statements “meet the lenient standard for conditional certification without additional support.” Reply at 3. Olivas adds that at least twenty other workers “have self-identified themselves as similarly situated by filing their consents with the court, ” which “further establish the propriety of Notice and that Defendants failed to pay Plaintiff and all similarly situated field personnel in compliance with the FLSA.” Reply at 3. Olivas contends that the criteria for granting conditional certification to a proposed class is that the proposed class members include employees in similar positions, and that the defendants made a single decision or enforced a policy to not pay them overtime. See Reply at 3-4 (citing Foster v. Nova Hardbanding, Civ. No. 15-1047, 2016 WL 4492829, at *2 (D.N.M. April 20, 2016)(Garza, M.J.)). Olivas avers that, “[a]s a matter of corporate policy, Defendants classified all field personnel [that were] paid a salary as exempt from overtime without performing any individualized analysis themselves.” Reply at 4. Further, Olivas contends that the proposed class is not overly broad, because Olivas and the class had similar job duties, and were paid pursuant to the same payment system that denied them each overtime pay. See Reply at 4-5.

         4. Supplemental Authority.

         On May 23, 2017, Olivas submitted a Notice of Supplemental Authorities. See Notice of Supplemental Authorities, filed May 23, 2017 (Doc. 23)(“Notice Supp. Auth.”). In the Notice Supp. Auth., Olivas notes that, since he filed his Notice Motion, two courts, including the Court in a different proceeding, approved notice by text message. See Notice Supp. Auth. at 1 (citing Landry v. Swire Oilfield Servs., No. CIV 16-621, 2017 WL 1709695, at *39 (D.N.M. May 2, 2017)(Browning, J.); Regan v. City of Hanahan, No. CIV 16-1077, 2017 WL 1386334, at *3 (D.S.C. Apr. 17, 2017)).

         5. The Hearing.

         The Court held a hearing. See Draft Transcript of Motion Proceedings (taken January 25, 2018)(“Tr.”).[2] The Court stated its inclination to grant the Notice Motion. See Tr. at 2:10 (Court). C&S Oilfield revisited its argument that Olivas' affidavits are “fairly general in nature” and that the proposed class features workers performing different jobs than the affiants performed. Tr. at 3:22-4:5 (Burns). The parties agreed that, should the Court grant the Notice Motion, C&S Oilfield should have ten days to provide employee contact information. See Tr. at 4:15-19 (Burns); id. at 5:16-19 (Court, Braziel). Olivas stated that “because of the length of time the motion has been on file we may be requesting some equitable tolling to try to get the statute back in line for when we filed the motion.” Tr. at 5:19-23 (Braziel).


         The FLSA requires covered employers to pay a minimum wage, and to pay their nonexempt employees overtime pay of time and one half their regular rate of pay for hours worked in excess of forty in a work week. See 29 U.S.C. §§ 206-207. The FLSA provides five means of enforcement: (i) criminal prosecutions for willful violators, see 29 U.S.C. § 216(a); (ii) individual civil causes of action to recover unpaid minimum wages, overtime compensation and certain liquidated damages, see 29 U.S.C. § 216(b); (iii) collective actions to recover damages, which are basically opt-in class actions, see 29 U.S.C. § 216(b); (iv) a cause of action allowing the Secretary of the Department of Labor to recover employees' damages and for additional recovery of “an equal amount of liquidated damages, ” 29 U.S.C. § 216(c); and (v) a suit for injunctive relief, see 29 U.S.C. § 217. “The principal congressional purpose in enacting the Fair Labor Standards Act of 1938 was to protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers.'” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981)(alterations in original)(quoting 29 U.S.C. § 202(a)).

         1. Employers Under the FLSA.

         The FLSA defines “employer” broadly:

“Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.

29 U.S.C. § 203. “Whether an employment relationship exists for the purposes of the FLSA turns on the ‘economic reality' of the working relationship.” Saavedra v. Lowe's Home Cntrs., Inc., 748 F.Supp.2d 1273, 1285 (D.N.M. 2010)(Browning, J.)(quoting Goldberg v. Whitaker House Co-op., Inc., 366 U.S. 28, 33 (1961)). The Supreme Court of the United States has instructed courts to construe the terms “employer” and “employee” expansively under the FLSA. Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 326 (1992). See Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947)(“[T]here is in the [FLSA] no definition that solves problems as to the limits of the employer-employee relationship under the Act . . . . The definition of ‘employ' is broad.”). The Tenth Circuit has similarly recognized that “[t]he terms ‘employ' and ‘employer' are given . . . broad . . . definitions.” Johnson v. Unified Gov't of Wyandotte Cnty., 371 F.3d 723, 729 (10th Cir. 2004)(Holloway, J.).

The statute is a remedial one, written in the broadest possible terms . . . . It runs counter to the breadth of the statute and to the Congressional intent to impose a qualification which permits an employer who exercises substantial control over a worker, but whose hiring decisions occasionally may be subjected to a third party's veto, to escape compliance with the Act.

Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984)(Timbers, J.). “Employer” includes persons or entities who have “managerial responsibilities” that give the person or entity “substantial control of the terms and conditions of the work of [its] employees.” Falk v. Brennan, 414 U.S. 190, 195 (1973). “Corporate officers who have a substantial ownership interest in the corporation, and who are directly involved in decisions affecting employee compensation, may be held personally liable under the FLSA.” Saavedra v. Lowe's Home Cntrs, Inc., 748 F.Supp.2d at 1288 (citing Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983)). See Fegley v. Higgins, 19 F.3d 1126, 1131 (6th Cir. 1994); Reich v. Circle C Inv. Inc., 998 F.2d 324, 329 (5th Cir. 1993); Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir. 1984); Donovan v. Janitorial Services, Inc., 672 F.2d 530, 531 (5th Cir. 1982); Shultz v. Mack Farland & Sons Roofing Co., 413 F.2d 1296, 1300 (5th Cir. 1969).

         2. The FLSA's Minimum Wage, Overtime, and Records Requirements.

         FLSA § 7 requires employers to pay covered employees who, in a given workweek, work more than forty hours “at a rate not less than one and one-half times the regular rate at which [the employee] is employed.” 29 U.S.C. § 207(a)(1). “The purpose of FLSA overtime is ‘to compensate those who labored in excess of the statutory maximum number of hours for the wear and tear of extra work and to spread employment through inducing employers to shorten hours because of the pressure of extra cost.'” Chavez v. City of Albuquerque, 630 F.3d 1300, 1304 (10th Cir. 2011)(Briscoe, J.). The Tenth Circuit has recognized ‚Äúthat a contract cannot designate an artificially low regular rate in order to reduce the minimum statutory overtime due . . ., [as] parties cannot ...

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