Lupardus v. Elk Energy Services, LLC
2:19-cv-00529
S.D.W. VaJul 28, 2020Background
- Plaintiff Richard Lupardus worked as a pipeline inspector for Elk Energy, paid a flat day rate, commonly worked >40 hours/week, and alleges Elk Energy misclassified inspectors as exempt and failed to pay overtime.
- Plaintiff sued under the FLSA and moved for conditional certification of a collective of “all inspectors employed by Elk Energy Services, LLC in the last three years.”
- Elk Energy opposed conditional certification, arguing (a) Lupardus is not similarly situated to other inspectors, (b) the proposed class is overbroad given varied contracts, duties, and arbitration clauses, and (c) certain proposed notice language and procedures are improper.
- The court applied the lenient, first-stage (conditional certification) standard, concluding Lupardus made a sufficient modest factual showing of a common pay policy (day-rate and inadequate overtime) to permit notice.
- The court conditionally certified the class for a three-year period, ordered Elk Energy to produce contact/employment data, approved notice by mail, e-mail, and text (with agreed language), rejected notice language warning of potential defendant-cost liability, required clear neutrality language and a statement that opt-ins may choose their own counsel, and directed consent forms be returned to plaintiffs’ counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conditional certification / similarly situated | Lupardus: day-rate pay and alleged systemic misclassification show common policy and similar claims | Elk: no affidavits/consents from other employees; allegations are conclusory | Court: granted conditional certification—plaintiff met lenient first-stage showing of a common policy |
| Class scope / statute of limitations | Lupardus: three-year period appropriate because willfulness alleged; keeps claims if willfulness proven | Elk: limit to two years because plaintiff hasn’t pled willfulness | Court: approved three-year period; willfulness is a fact question and discovery may resolve it |
| Overbreadth / manageability / varied duties & arbitration | Lupardus: common compensation scheme across inspector positions supports collective treatment | Elk: different contracts, jobs, locations, and arbitration/waivers make class overbroad and individualized | Court: declined to narrow now; deferred manageability/individualized issues to decertification stage |
| Notice content (costs, neutrality, counsel) | Lupardus: exclude chilling language about defendant recovering costs; proposed notice already states court hasn’t decided merits | Elk: notice should warn about potential cost liability, stress court neutrality, and tell recipients they can choose counsel | Court: rejected cost-warning (chilling); required express neutrality language and inclusion of right to choose counsel |
| Notice method & administration of consents/data production | Lupardus: request class list (names, addresses, phones, emails, titles, dates), notice by mail/e-mail/text, consents returned to plaintiffs’ counsel, reminders permitted | Elk: oppose text messages, reminders, and having consents sent to plaintiffs’ counsel (proposes court receives consents) | Court: approved production, three-prong notice (mail/e-mail/text) with agreed concise text for texts, consents to be mailed to plaintiffs’ counsel, and approved reminder notices |
Key Cases Cited
- Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165 (1989) (authorizes court-facilitated notice to potential FLSA collective members and stresses timely, accurate notice)
- Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987) (origin of two-stage conditional certification approach)
- Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095 (10th Cir. 2001) (conditional certification requires substantial allegations of a single policy or plan)
- Grayson v. K Mart Corp., 79 F.3d 1086 (11th Cir. 1996) (claims need only be similar, not identical, at notice stage)
- Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001) (characterizes first-stage burden as not heavy)
- Zavala v. Wal–Mart Stores, Inc., 691 F.3d 527 (3d Cir. 2012) (endorses two-step approach and discretionary notice authority)
- Fenley v. Wood Grp. Mustang, Inc., 170 F. Supp. 3d 1063 (S.D. Ohio 2016) (conditionally certifying day-rate paid inspectors nationally)
- Faludi v. U.S. Shale Sols., L.L.C., 950 F.3d 269 (5th Cir. 2020) (FLSA does not preclude awarding costs to a prevailing defendant)
- Lochridge v. Lindsey Mgmt. Co., 824 F.3d 780 (8th Cir. 2016) (same—defendant may recover costs under FLSA)
- McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988) (willfulness requires employer knowledge or reckless disregard)
- Perez v. Mountaire Farms, Inc., 650 F.3d 350 (4th Cir. 2011) (discusses employer willfulness standard under FLSA)