Wade v. Furmanite America, Inc. Do not docket in this case. Case is consolidated under (3:18-CV-433).
3:17-cv-00169
S.D. Tex.May 4, 2018Background
- Plaintiff James Wade, a pipeline inspector employed out of Furmanite America, Inc.’s Tulsa, OK branch, sued under the FLSA on behalf of similarly situated inspectors alleging Furmanite effectively paid a day rate and failed to pay overtime.
- Wade alleges Furmanite disguised day-rate pay by allocating a flat daily amount into straight-time and overtime entries, producing consistent patterns in paystubs when he worked six- or seven-day weeks.
- Furmanite contends it paid hourly rates: it set employees’ hourly rates by back-calculating from client day-rate payments and desired daily profit, arguing this is not paying employees a day rate.
- Two declarants (Wade and Jeff Boyd) attested to similar pay and duties; Furmanite acknowledged their employment but disputed job titles/duties and the characterization of pay practices.
- Court applied the Lusardi two-step conditional-certification framework (notice stage/decertification stage) and the lenient showing required at the notice stage.
- Magistrate Judge Edison granted conditional certification for a collective defined as: all inspectors employed out of Furmanite’s Tulsa branch for at least one week from May 5, 2015 to the present; ordered disclosure of contact information and approved 60-day opt-in notice by mail and email (electronic consent allowed).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is a reasonable basis that other aggrieved employees exist | Wade submitted his and Boyd’s declarations and Furmanite admits ~250 Tulsa Group Inspectors exist | Furmanite disputes pay-scheme characterization and job duties | Court: plaintiff met the low burden; other aggrieved individuals reasonably exist |
| Whether putative class members are similarly situated for conditional certification | Classwide liability alleged because pay scheme (day-rate disguised as hourly) would be a per se FLSA violation regardless of job title | Furmanite: many different inspector job titles/duties make collective treatment inappropriate; pay differences tied to which clients paid day rates | Court: differences in job titles not material at notice stage; similarity turns on alleged common pay practice, so conditional certification appropriate |
| Proper scope of the collective/class definition | Wade: all inspectors employed out of Tulsa branch for ≥1 week in 3-year period before notice approval | Furmanite: limit to those who worked on projects where Furmanite received day-rate payments (narrow subset) | Court: adopted Wade’s definition with minor modifications (explicitly name Furmanite; start date May 5, 2015); declined client-based limitation at this stage |
| Form and method of notice (including duration, email, and counsel contact info) | Notice by first-class mail and email; 60-day opt-in; include plaintiffs’ counsel contact; permit electronic signatures | Furmanite: oppose email, prefer mail only; propose 45-day notice; oppose plaintiffs’ counsel contact info | Court: permit mail and email; 60-day opt-in period; include plaintiffs’ counsel contact; allow electronic consent; decline to include defense counsel contact |
Key Cases Cited
- Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989) (collective-action notice facilitates efficient resolution and lower individual costs)
- Mooney v. Aramco Servs. Co., 54 F.3d 1207 (5th Cir. 1995) (adopts two-step Lusardi approach for FLSA collective-certification analysis)
- Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987) (two-stage procedure for conditional certification and notice)
- Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516 (5th Cir. 2010) (court assesses whether claims are sufficiently similar at notice stage)
- Sperling v. Hoffmann-La Roche, Inc., 118 F.R.D. 392 (D.N.J. 1987) (discusses liberal standard for certification where plaintiffs allege common policy or plan)
- Vaughn v. Document Grp. Inc., 250 F. Supp. 3d 236 (S.D. Tex. 2017) (courts should not resolve merits or credibility disputes at conditional-certification stage)