Calvillo v. Bull Rogers, Inc.
267 F. Supp. 3d 1307
D.N.M.2017Background
- Plaintiff Patricio Calvillo, a former casing employee, sued Defendants under the FLSA (29 U.S.C. § 216(b)) and under New Mexico wage law, alleging unpaid overtime arising from company policies over the prior three years.
- Two principal alleged FLSA policies: (1) an “Uncounted Hours Policy” where hours were not tracked for employees paid on piece/quantity basis, and (2) an “OT Miscalculation Policy” where certain "Additional Pay" (bonuses, per diem, allowances) was excluded from the regular rate when calculating overtime.
- Plaintiffs submitted the amended complaint plus declarations from two casing employees asserting other similarly situated employees were subject to the same practices and unaware of the lawsuit.
- Plaintiffs moved for conditional collective-action certification and court-supervised notice (opt-in) to potential class members, requesting notice by mail, email, and text.
- Defendants opposed conditional certification and raised objections to the proposed notice and consent forms; the court addressed both the certification and specific notice/consent wording.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conditional certification under § 216(b) at the notice stage is warranted | Calvillo alleged common employer, similar duties, and common policies causing unpaid/miscalculated overtime; presented declarations supporting substantial allegations | Defendants argued plaintiffs provided only conclusory allegations, disputed factual assertions of unpaid time, and pointed to their own time-reporting practices | Granted: court applied the lenient “notice-stage”/two-step ad hoc test and found plaintiffs met the modest showing of being "similarly situated" |
| Whether supervised notice to potential opt-in plaintiffs should be approved | Notice (by mail, email, text) needed to reach dispersed workforce; proposed form provided | Defendants objected to content omissions and method (text/email); asked parties to confer instead of full briefing | Granted: court approved supervised notice and mail/email/text methods, finding such electronic notice reasonable |
| Whether the proposed form of Notice should include defendants’ denial language | Plaintiff later added a short denial statement in reply | Defendants wanted clearer denial and obligations described | Approved: court accepted Plaintiff’s modified notice (reply version) that included a denial statement as sufficient |
| Whether proposed consent form language binding opt-ins to future litigation is permissible | Plaintiff's consent included language that it could be used in this or any subsequent action | Defendants objected to overbroad/ambiguous language | Partially denied/modified: court struck language referencing “any subsequent action,” approved a narrower consent limited to the present case |
Key Cases Cited
- Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 166 (recognizing court-supervised notice and purpose of FLSA collective actions)
- Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir.) (two-step ad hoc approach; lenient notice-stage similarly situated standard)
- Grayson v. K Mart Corp., 79 F.3d 1086 (11th Cir.) (positions need only be similar, not identical, for § 216(b))
- Landry v. Swire Oilfield Servs., L.L.C., 252 F. Supp. 3d 1079 (D.N.M. 2017) (approving mail, email, and text notice for dispersed oilfield workforce)
- Williams v. Sprint/United Mgmt. Co., 222 F.R.D. 483 (D. Kan. 2004) (notice-stage requires substantial allegations; merits and individualized damages irrelevant at notice stage)
- Mielke v. Laidlaw Transit, Inc., 313 F. Supp. 2d 759 (N.D. Ill.) (describing stricter second-step review after discovery)
- Heckler v. DK Funding, LLC, 502 F. Supp. 2d 777 (N.D. Ill.) (second-stage factors: disparate employment settings, affirmative defenses, fairness)
- Greenstein v. Meredith Corp., 948 F. Supp. 2d 1266 (D. Kan. 2013) (noting the lenient standard at conditional certification stage)