MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Plaintiffs’ Motion for Conditional Certification, Hoffmann-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
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 óf “similarly situated” employees. Thiessen v. General Electric Capital Corp.,
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.,
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. ^(“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 if 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,” he., 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,” Le., the “FWW Class.” Complaint ¶54, at 9.
7. Finally, Tamayo seeks to represent á 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,” he., 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
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.”)(stat-ing 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.”)(“main-taining 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.”)(“maintain-ing 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, át 1 (executed February 10, 2017), filed February 10,2017 (Doc. 44-l)(“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.” Com-, plaint ¶ 31, at 6.
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 numbei’s 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 Pays-tub”)).
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 job-site 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.
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 Con-stancio 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.,
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. 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, he., “[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, ⅛ “[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); ⅛¶ 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, he., “[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 them 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.
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 understanding] 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' “agreetl to be paid less than the minimum wage for all hours worked.” Motion at 6 (relying ón 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 ease 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,
17. The Plaintiffs note that the FLSA authorizes notice only-to “similarly situated” members of a proposed class. Motion atr7 (citing 29 U.S.C. § -216(b); Bustillos v.
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.,
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.,
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.,
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.,
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 “[cjourts regularly find evidence of an identifiable corporate level policy for calculating compensation support class certificar tion 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 Deck; 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 “[artificial 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.,
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 de-clarants 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
26. The Plaintiffs contend, moreover, that “[pjersonal 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 ease, 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,
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.,
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 informatiori 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.
32. Finally, the Plaintiffs -request authorization for their counsel to “hire a third-party class action administration company to conduct the actual mailing of the forms if it deems appropriate.” Motion at 20.
33. The Plaintiffs provide several justifications for their request to send the Notice and Consent Form by email and by text message. See Motion at 20-22.
34. Regarding email, the Plaintiffs argue that such notice “increases' the chance of the class members receiving and reading the notice.” Motion at 21. The Plaintiffs note that courts have observed that “ ‘all manner of commercial transactions are routinely cemented by electronic submission,’ ” Motion at 21 (quoting Mraz v. Aetna Life Ins. Co.,
35. With respect to notice via text message, the Plaintiffs avow that such notice “is a viable and efficient means of communicating with many prospective members of a collective action.” Motion at 21 (citing Bhumithanarn v. 22 Noodle Mkt. Corp.,
36. In addition to the above requests, the Plaintiffs also propose “that class members be allowed to execute their consent form electronically via a service called Right Signature which tracks the IP address and email address from which the form is being accessed and executed.” Motion at 22 (footnote omitted). The Plaintiffs explain that this service enables class members to sign their forms “by clicking on a link, which in turn takes them to a website where they can review the document they are signing, click a box indicating they have read and understood the consent form and insert information such as their name and address.” Motion at 22. At that point, the Plaintiffs continue, “a copy of the form is made accessible to Plaintiffs counsel who will, in turn, file same with the Court Motion at 22.
37. This practice, the Plaintiffs contend,- “is justified in this case because of the difficulty of receiving and sending mail from an isolated wellsite.” Motion at 22. They add, moreover, that “[sjeveral -recent decisions have approved the use of online electronic , signature opt-in forms,” Motion at 22 (citing, among others, Dyson v. Stuart Petrol. Testers, Inc.,
38. The Plaintiffs make several additional requests. See Motion at 23-25.
40. The Plaintiffs also request that “class members be given 75 days to opt into the lawsuit.” Motion at 24. They posit that such an amount of time is “reasonable and necessary given the unique obstacles in this case that could delay potential plaintiffs’ receipt of the notice.” Motion at 24 (footnote omitted).
41. Next, the Plaintiffs ask that, during the opt-in period, “the court issue an order prohibiting Defendants from communicating with the class members regarding this lawsuit or its resolution.” Motion at 24.
42. Finally, the Plaintiffs “urge the court to make rulings regarding both the content of the notice and the method of delivery” should the Court grant conditional certification. Motion at 24. The Plaintiffs note that some courts grant certification and then invite the parties to negotiate the notice’s language and its methods of communication; in the Plaintiffs’ view, such a practice results in protracted disputes over contested issues, which “further delay class notice.” Motion at 24-25.
d. The Request for Expedited Consideration.
43. The Plaintiffs note that the “statute of limitations is running against the claims of the potential opt-in plaintiffs.” Motion at 25. They contend that FLSA actions “ ‘must be commenced with[in] two years,’ unless a willful violation is proven,” which “may be commenced within three years.” Motion at 25 (quoting 29 U.S.C. § 255(a)). They note, however, that an FLSA action is not considered “commenced” with respect to opt-in plaintiffs in a collection until their “written consent is filed with the court.” Motion at 25 (citing 29 U.S.C. § 256(b)). Thus, they assert, “[t]he rolling statute of limitations running against plaintiffs in actions to recover unpaid wages means that their claims are reduced by each day that passes between the filing of the action and the day on which their consent form is received by the Clerk of the Court.” Motion at 25.
44. For that reason, the Plaintiffs request that the Court expedite its consideration of the Motion. See Motion at 25.
3. The Response.
45. Swire Oil responded to the Motion on January 27, 2017. See Response at 1.
46. Swire Oil advances four primary arguments in opposition to conditional certification. First, Swire Oil argues that the proposed FWW Class and Salary Class members are not similarly situated, because the Plaintiffs fail to identify a decision, policy, or plan to violate the class members’ FLSA rights. See Response at 2-4. Second, Swire Oil contends that the proposed FWW Class and Salary Class members are not similarly situated, because the classes are comprised of employees with dissimilar positions and because some opt-in Plaintiffs have already settled their claims with Swire Oil. See Response at 4-7. Third, Swire Oil argues that the proposed classes’ scopes are overbroad. See Response at 7-8. Fourth, and finally, Swire Oil asserts that the Plaintiffs’ proposed Notice and Consent Form is deficient, because it does not address payment of court costs and expenses in the event that the Plaintiffs lose. See Response at 8-9.
a. Swire Oil’s Alleged Decision, Policy, or Plan to Violate the Proposed Class Members’ FLSA Rights.
48. Swire Oil begins by noting that the Court has discretion whether to conditionally certify a collective action under § 216(b) and by arguing that, although the “similarly situated” test is “lenient, it is not automatic.” Response at 2 (citing Thiessen v. General Electric Capital Corp.,
49. According to Swire Oil, the Plaintiffs admit that “they were subject to differing methods of pay at differing times,” that some Plaintiffs “received notice of a change to the FWW method of payment[ ] while others did not,” and that Swire Oil explained the FWW method to some Plaintiffs and not to others. Response at 3 (citing Motion at 4, 6). Swire Oil contends that these “admissions demonstrate that [the Plaintiffs] were not all victims of a single ‘decision, policy, or plan’ by Swire.” Response at 3.
50. Swire Oil posits, moreover, that the Plaintiffs admit that, “as late as the fall of 2013, ‘nearly" all of Swire’s manual laborers were paid on a salaried basis.” Response at 3 (quoting Motion at 4). In Swire Oil’s view, if “some manual laborers were not paid in this manner, clearly no single decision, policy or plan governed at the time.” Response at 3.
51. Similarly, Swire Oil notes that “[s]ome Plaintiffs admit that they were paid hourly for most of 2014, but allege other positions were improperly classified as exempt.” Response at 3. Swire Oil contends that this is “not evidence of a single ‘decision, policy, or plan’ by Swire.” Response at 3.
52. Finally, Swire Oil notes that the “Plaintiffs allege that ‘at the end of 2014’ Swire began paying its hourly workers under FWW.” Response at 3. This alleged policy, Swire Oil notes, was adopted “at least a year and a half after Swire had allegedly made another alleged ‘decision, policy, or plan’ to improperly classify certain positions as exempt.” Response at 3-4. Swire Oil asserts that these “varying alleged decisions by Swire to support [the Plaintiffs’] varying claims” fail to meet the test for similarly under § 216(b). Response at 4.
b. The Similarity of the Proposed Class Members’ Positions at Swire Oil and Swire Oil’s Settlement of Certain Proposed Class Members’ Claims.
53. Turning to the similarly situated test’s second requirement, Swire Oil avers that the proposed FWW Class and Salary Class are not comprised of employees with similar positions. See Response at 4.
54. Swire Oil contends that, despite the Plaintiffs’ assertion that the operators’ primary duties were essentially the same, “the declarations submitted in support of the Motion [demonstrate] that, while engaged in a common enterprise, Plaintiffs’ job duties differed.” . Response at 4. Swire Oil argues that, although “[a]ll the Plaintiffs apparently played some role in setting up the equipment on site and rigging it down after the job was complete,” Response at 4 (relying on Landry Deck; Sut
55. Aside from alleged dissimilarities in their employment, Swire Oil argues that certain proposed class members are not similarly situated, because they have already settled their claims with Swire Oil. See Response at 6,
56. Swire Oil notes that several opt-in Plaintiffs also opted into the lawsuits that employees previously filed against Swire Oil for the company’s classification of oilfield manual laborers as exempt from'the FLSA’s overtime compensation requirements. See Response at 6 (referencing Bergman v. Swire Oilfield Servs., LLC, No. CIV 13-0989, Complaint (W.D. Tex. Oct. 30, 2013)(W.D. Tex. Doc. 1), filed January 27, 2017 (D.N.M. Doc. 37-1.B); McCain v. Swire Oilfield Servs., LLC, No. CIV 14-2526, Complaint (S.D. Tex. Sept. 1, 2015)(S.D. Tex. Doc. 1), filed January 27, 2017 (D.N.M. Doc. 37-1.C)). Swire Oil notes that both cases “resolved with no finding of liability and were dismissed with prejudice.” Response at 6 (citing Bergman v. Swire Oilfield Servs., LLC, No. CIV 13-0989, Order Approving Collective Action Settlement and Dismissing Action (W.D. Tex. Aug. 12, 2014)(W.D. Tex. Doc. 45), filed January 27, 2017 (D.N.M. Doc. 37-1.D); McCain v. Swire Oilfield Servs., LLC, No. CIV 14-2526, Order Dismissing Action with Prejudice (S.D. Tex. May 26, 2016)(S.D. Tex. Doc. 18), filed January 27, 2017 (D.N.M. Doc. 37-1.D)). Swire Oil discusses both cases in turn.
57. First, Swire Oil notes that Bergman v. Swire Oilfield Servs., LLC involved allegations “that Swire improperly paid Water Transfer Technicians ... a salary plus daily bonus until September 1, 2013, when it changed their pay method to hourly plus overtime,” Response- at 6. Swire Oil notes that opt-in Plaintiffs Jiminsky Evans, George Murphy, Ernie Salinas, Hugo Valdez, and Mikah Wilhite also opted into Bergman v. Swire Oilfield Servs., LLC, and settled their claims against Swire Oil, See Response at 6 (referencing, among others, Bergman v. Swire Oilfield Servs., LLC, No. CIV 13-0989, Notice of Consent to Join by Jiminsky Evans (W.D. Tex. April 11, 2014)(W.D. Tex, Doc. 36-5), filed January 27, 2017 (D.N.M. Doc. 37-1.E)). Swire Oil notes that it funded the Bergman v. Swire Oilfield Servs., LLC settlement in September 2014. See Response at 6 (citing Declaration of Vicki Tucker ¶ 5, at 2 (executed January 24, 2017), filed January 27, 2017 (Doc. 37.1-A)(“Tucker Decl.”)).
58. Swire Oil adds that Valdez and Wil-hite are not entitled- to further- payment, because it paid them on an hourly basis or as salaried exempt supervisors from the time they settled their claims until their employment terminated. See Response at 6-7 (citing Tucker Dec. ¶¶4-5, at 1-2). Swire Oil notes, moreover, that, although Tamayo did not opt into Bergman v. Swire Oilfield Servs., LLC, “he later settled his claims against Swire pursuant to the formula used to calculate damages in- that case,” and “sighed a release and Swire
59. Second, Swire Oil notes that McCain v. Swire Oilfield Servs., LLC involved allegations “that Swire improperly-paid its field operators a salary plus daily bonus'.” Response at 7. Swire Oil notes that opt-in Plaintiffs Eric Adkison, Travis Mearns, and Clay Sanderford also opted into McCain v. Swire Oilfield Servs., LLC, and settled their claims against Swire Oil. See Response at 7 (citing McCain v. Swire Oilfield Servs., LLC, No. CIV 14-2526, Sealed, Unopposed Motion to Permit Disbursement at 1-2 (S.D. Tex. May 25, 2016)(S.D. Tex. Doc. 17), filed January 27, 2017 (D.N.M. Doc. 38)). Swire Oil notes that it funded the McCain v. Swire Oilfield Servs., LLC settlement in April 2016. See Response at 7 (citing Tucker Decl. ¶ 8, at 2). ‘
60. , Swire Oil adds, that Adkison’s employment with Swire Oil terminated on August 17, 2015, and that, as a result, “he is not entitled to additional compensation.” Response at 7 (citing Tucker Deck ¶ 9, at 2). Swire Oil asserts that “[t]he same is true with respect to Mr. Sanderford, whose second and final employment by Swire terminated on August 15, 2015.” Response at 7 (citing Tucker Deck ¶ 10, at 2).
c. The Proposed Classes’ Scopes.
61. The proposed class members’ alleged dissimilarities notwithstanding, Swire Oil contends that the proposed classes are overbroad. See Response at 7.
62. Swire Oil contends that the Plaintiffs “have not demonstrated that alleged misclassification of non-exempt employees or improper payment under the FWW is occurring nationwide," Response at 7. Swire Oil asserts that “FLSA violations at one of a company’s multiple locations generally are not, without more, sufficient- to support company-wide notice.” Response at 7 (quoting Graham v. Jet Specialty, Inc.,
63. Here, Swire Oil notes, the Plaintiffs “proffer only declarations from individuals with knowledge of Swire’s practices in New Mexico, Texas, Oklahoma and North Dakota.” Response at 8 (referencing Landry Deck ¶ 3, át 1; Sutton Deck ¶ 3, at 1; Ruiz Deck ¶ 3, at 1; Acosta Deck ¶ 3, at 1; Silva Deck ¶ 3, at 1; Constancio Deck ¶ 3, at 1). Swire Oil notes that none of the declarants mentions “any discussion with employees of Swire .,. — from any state— about Swire’s practices outside of New Mexico, Texas, Oklahoma and North Dakota.”-Response-at 8. Similarly, Swire Oil observes, “none of the declarations allege any personal knowledge of Swire’s nationwide policies.” Response at '8 (citing, among others, Bryant v. Act Fast Delivery of Colo., Inc.,
64. Swire Oil reasons that, accordingly, “[t]here is no reasonable basis to conclude the alleged illegal practices extended beyond the borders of New Mexico, Texas, Oklahoma and North Dakota.” Response at 8. Thus, Swire Oil requests that, if the Court grants conditional certification, the Court limit the proposed classes’ scope to these four states. See Response at 8.
d. The Proposed Notice and Consent Form.
65. Last, Swire Oil addresses the Plaintiffs’ proposed Notice and Consent Form. See Response at 8.
66. Swire Oil raises one objection to the proposed form — that, although it addresses the potential for an unfavorable outcome for the Plaintiffs, it does not indi
67. Swire Oil argues that, “[i]n the Tenth Circuit, courts regularly include a notice that plaintiffs may have to pay court costs if they do not prevail.” Response at 8 (citing Creten-Miller v. Westlake Hardware, Inc.,
68. Accordingly, Swire Oil requests that, should the Court grant conditional certification, it order that the following sentence be inserted at the end of the first paragraph in section six of the Notice and Consent Form: “Also, if plaintiffs lose, they could be responsible for paying court costs and expenses.” Response at 8-9.
4. The Reply.
69. The Plaintiffs replied on February 10,2017. See Reply at 1.
70. The Plaintiffs contend that Swire Oil’s arguments are based on a “post-discovery framework” rather than the “pre-discovery framework” that the FLSA requires. Reply at 1.
71. The Plaintiffs advance four arguments in support of conditional certification. First, they assert that Swire Oil’s argument that they fail to allege a “single decision, policy, or plan” to violate the FLSA “overstates Plaintiffs’ burden” at the pre-discovery phase. Reply at 1. Second, they aver that Swire Oil effectively changes the “lenient ‘similarly situated’ standard to an ‘identical’ standard when [it] emphasize[s] minor differences between the job duties of one manual laborer in the oil field from another.” Reply at 1. Third, as to Swire Oil’s arguments regarding the opt-in Plaintiffs who have ah-eady settled their claims against Swire Oil, the Plaintiffs contend that those settlements do not defeat conditional certification, because they “do not affect any continuing or new FLSA violations that [took] place after the effective date of the settlements.” Reply at 2 (alteration added). If anything, the Plaintiffs posit, “[t]he Court can exclude from the class any employee who released their claims and did not continue to work for Defendants after the release date.” Reply at 2. Fourth, the Plaintiffs argue that the proposed classes’ scopes are appropriate. See Reply at 2. Fifth, and finally, the Plaintiffs respond to Swire Oil’s single objection to the proposed Notice and Consent Form. See Reply at 8.
72. The Court reviews these arguments in turn.
73. First, the Plaintiffs contend that they have “clearly identified two [] policies/plans” to violate the proposed class members’ FLSA rights. Reply at 3. They note that the Motion alleges that Swire Oil had a “policy of denying overtime pay to a group of manual laborers working in oilfields by misclassifying them as exempt.” Reply at 3 (citing Motion at 1-3). They note that the motion also alleges a “policy of paying oilfield manual laborers under the fluctuating workweek method [ ] of pay without complying with the statute’s arduous prerequisites.” Reply at 3 (citing Motion at 1-3). The Plaintiffs' admit that “there are two different policies/plan[ ]s in question here,” but contend that “[t]he fact that Defendants paid some employees under both illegal plan[ ]s does not amount to the lack of a ‘single’ plan.” Reply at 3 (alterations added). Rather, they argue, “[t]here simply are two different classes and within each class Plaintiffs have identified separate plan[ ]s/policies that violate the law.” Reply at 3 (alteration added).
74. In the Plaintiffs’ view, Swire Oil “cannot pay any employee in the same week under both the compensation systems”; “[t]hey are mutually exclusive in
75. Second, the Plaintiffs contend that they have made “substantial allegations” that the proposed classes’ members are similarly situated. Reply at 4. The Plaintiffs observe that, before discovery, the standard for similarity is “lenient,” and that, at the close of discovery, “the parties can brief the Court on whether the case should proceed to trial under a collective basis.” Reply at 4. They remind the Court that “[t]he only relief sought here is the mailing of a notice to potential class members.” Reply at 4. The Plaintiffs assert that, at this lenient pre-discovery stage, they have made sufficiently substantial allegations of similarity to justify mailing a notice to potential class members. See Reply at 4.
76. In support of this argument, the Plaintiffs note that the potential class members “were all manual laborers working in oilfields who were paid under one or both suspect pay practices.” Reply at 4. As in the Motion, they maintain that it is irrelevant for conditional certification purposes “[wjhether one employee turned a wrench or another operated a flow back pump,” because “[tjhe jobs were similar in material respects and the pay methods were identical within each defined class.” Reply at 4 (emphases in original). They note, for example, that the Salary Class members were “all exempt regardless of their job titles or duties,” and as “such, they are similarly situated.” Reply at 4.
77. Third, the Plaintiffs argue that Swire Oil’s “identification of 3 out of 47 Plaintiffs who released their claims and then ceased working for Defendants has no effect on certification.” Reply at 5. The Plaintiffs admit that, if true, those plaintiffs who settled their claims against Swire Oil and then terminated their employment “have no additional wage claim.” Reply at 5. They aver, however, that “[tjhat fact ... has no bearing on certification.” Reply at 5. They contend that “FLSA settlement agreements generally do not preclude subsequent claims arising out of the employment relationship.” Reply at 5. Indeed, they note, courts in the Tenth Circuit “have refrained from approving FLSA settlement agreements that generally release the employer from future claims.” Reply at 5 (citing Gambrell v. Weber Carpet, Inc.,
78. The Plaintiffs argue, further, that “even employees who settled their claims but then continued to work for an employer and suffered a pay violation have a right to pursue their wage claims.” Reply at 5. Such is the case, they posit, “with the other six Plaintiffs who participated in pri- or settlements, but continued to work for Defendants and fall under one or both class definitions.” Reply at 6.
79. The Plaintiffs conclude that the Court can just “exclude from the class definitions any employee who released their claims and did not continue to work for Defendants after the release date.” Reply at 7. They assert that “[tjhis will assure that only employees who continued to work and suffer the violations participate in this case.” Reply at 7.
80. Fourth, the Plaintiffs argue that the proposed classes’ nationwide scope “is
81. Fifth, the Plaintiffs note that Swire Oil’s sole objection to the proposed Notice and Consent Form is that it should contain the following sentence: “Also, if plaintiffs lose, they could be responsible for paying court costs and expenses.” Reply at 8. The Plaintiffs aver that such language “would only serve to dissuade people from exercising their rights and is clearly retaliatory in nature.” Reply at 8. Accordingly, they argue that the proposed language should not be added to.the Notice and Consent Form. See Reply at 8.
5. The Hearing.
82. The Court held a hearing on March 23, 2017. See Draft Transcript of Motion Hearing (taken March 23, 2017)(“Tr.”).
■ 83. The Plaintiffs’ opened by asserting that the Motion presents a narrow issue, that is, whether the Court should authorize notice to all Swire Oil employees who fall within the proposed Salary Class and FWW Class. See Tr. at 3:21-25 (Kennedy). The Plaintiffs argued that the standard for conditional certification is “very lenient,” because such decisions are “not made [on] the merits” and are usually made at the pre-discovery stage. Tr. at 4:4-8 (Kennedy). According to the Plaintiffs, conditional certification requires only “substantial allegations of a policy that violated the FLSA.” Tr. at 4:8-10 (Kennedy). The Plaintiffs contended' that they have proffered substantial allegations that Swire Oil implemented two compensation structures which violated the1 FLSA over the last three years, he., (i) salary without overtime; and (ii) sub-minimum wage pay under the FWW method. See Tr. at 4:13-7:22 (Kennedy). The Plaintiffs noted that Swire Oil has not submitted countervailing declarations disputing these allegations, nor has it denied that these compensation structures violated the FSLA. See Tr. at 7:23-8:5 (Kennedy).
84. Specifically regarding the FWW Class, the Plaintiffs argued that “this is as cohesive a group as [you] can [ ] get in a wage and hour case.” Tr. at 8:19-20 (Kennedy). They stressed that the FWW method’s illegality is “common across all of the plaintiffs” and that slight variances in class members’ specific job duties are immaterial, because such differences do not change that Swire Oil improperly implemented the FWW method across the FWW Class. Tr. at 8:25-9:5 (Kennedy). The Plaintiffs asserted that the class members’ job duties need not be “identical,” but rather “similar.” Tr. at 9:11-13 (Kennedy). In short,
85. Swire Oil took up argument, contending that the proposed .classes’ members are not similarly situated,. See Tr. at 11:21-25 (Gatling). The Motion and the declarations that the Plaintiffs'proffer in support of the Motion admit that the proposed classes’ members are not similarly situated, Swire Oil asserted. See Tr. at 11:25-12:3 (Gatling). Swire Oil argued that Sutton, for example, had different duties as a water transfer supervisor than -the other Plaintiffs had. See Tr. at 12:6-11 (Gatling). Swire Oil also argued that Ruiz, as a mechanic “doing maintenance on well site equipment,” performed “very different” duties than the other Plaintiffs. Tr. at 12:16-20 (Gatling).
86. Swire Oil turned to the proposed classes’ scopes and stressed that the Plaintiffs “have only submitted declarations of employees who worked in New Mexico, Texas, Oklahoma and North Dakota.”.Tr. at 12:23-13:2 (Gatling). Thus, Swire Oil concluded, the Plaintiffs do not “have any evidence of any actions that have taken place throughout the United States involving Swire.” Tr. at 13:3-5 (Gatling).
87. Next, Swire Oil contended that the Plaintiffs “have not identified any single decision or policy to classify any of these employees as salaried.” Tr. at 13:7-9 (Gatling). Swire Oil posited that the Plaintiffs “are just asserting the fact that some of these employees were classified as salary and they haven’t identified any decision or policy of Swire to do that.” Tr. at 13:9-13 (Gatling).
88. As to the FWW Class, Swire Oil noted that the Tucker Deck asserts that “Swire had no single policy or plan regarding the payment of its employees in the ■United States ....’’ Tr. at 13:14-20 (Gá-tlingh Swire Oil noted that the Tucker Deck also explains that Swire Oil started paying fluid technicians under the FWW method before it- paid service operators and service - specialists under that method. See Tr. at 13:20-23 (Gatling). Thus, Swire Oil argued, “these are very different decisions at different times. There was no single policy or plan that they can identify that would- apply to all of these employees.” Tr. at 13:24-14:2 (Gatling). Indeed, Swire Oil stated, the Plaintiffs “admit this.” Tr. at 14:5 (Gatling);
89. In rejoinder, the Plaintiffs' noted that they have submitted declarations from Swire Oil employees in five states", including Louisiana. See Tr. at 17:15-18 (Kennedy). The Plaintiffs argued that Swire Oil has not taken the position that the salary and FWW compensation structures were isolated to those five states; indeed, they asserted, “if the practice was limited to those states, [Swire oil] would have brought that [to the] Court’s attention.” Tr. at 17:22-18:4 (Kennedy). The Plaintiffs concluded that “submitting evidence of pay practices in five states is a , sufficient enough sample to know that the practice is nationwide.” Tr. at 18:4-7 (Kennedy).
90. The Plaintiffs argued, moreover, that the proposed class definitions are self-limiting; that is, “if the Court were to certify [the FWW Class] as all employees paid under the fluctuating workweek it by definition would [only] include people who were paid under [that. method].” Tr. at 18:8-13 (Kennedy). In other words, the Plaintiffs noted, the Court would not be certifying an overly broad class, because the FWW Class by definition would not include individuals who were not.paid under the FWW method, regardless of where they are located. See Tr. at 18:13-16 (Kennedy). The Plaintiffs noted that the same logic holds true for the Salary Class. See Tr. at 18:22-23 (Kennedy).
92. Last, the Plaintiffs argued that it is immaterial whether Swire Oil had “two different methods of pay at different times over the last 3, three and a half years.” Tr. at 19:9-13 (Kennedy). The Plaintiffs contended that “the mere fact that you have one policy that violates the law that was followed by a second policy that violates the law doesn’t mean there isn’t a single pay policy that violates the law, it means there are two.” Tr. at 19:13-19 (Kennedy). The Plaintiffs noted that they have defined two classes that correspond to both allegedly illegal pay policies; that is, that the Salary Class corresponds to Swire Oil’s single policy regarding salary compensation, while the FWW Class corresponds to Swire Oil’s single policy regarding FWW method compensation. See Tr. at 19:19-23 (Kennedy). The Plaintiffs contended, in short, that “[t]he fact that [Swire Oil] rolled one [policy] out and brought in another one doesn’t affect the certification of the two separate classes.” Tr. at 19:23-20:1 (Kennedy).
93. Swire Oil again took up argument. See Tr. at 20:13 (Gatling). Swire Oil asserted that the proposed class definitions are vague, because the term “manual laborers” gives no “guidance as to what positions they would be defining at Swire.” Tr. at 20:16-18 (Gatling). Swire Oil contended, moreover, that the two classes may overlap; that operators could simultaneously be paid a salary and also be paid overtime under the FWW method. See Tr. at 20:20-22 (Gatling). Swire Oil explained that the FWW method “is defined as you pay employees a salary, and then to the extent that they work over 40 [hours], then you recalculate the regular rate to determine if they are in fact entitled to overtime.” Tr. at 20:23-21:2 (Gatling).
94. The Court gave the Plaintiffs the last word on their Motion. See Tr. at 21:23-24 (Court).
95. The,Plaintiffs stated that their understanding of Swire Oil’s argument is that they have not identified an unlawful policy, because they have not “identified a [ ] written decision or handbook or something like that.” Tr. at 22:2-5 (Kennedy). “[T]hat’s not the standard,” the Plaintiffs asserted. Tr. at 22:5-6 (Kennedy). The Plaintiffs contended that “there is no question that [Swire Oil] paid [operators] either under a salary method or a fluctuating workweek method.” Tr. at 22:6-10 (Kennedy). The Plaintiffs concluded that “[t]hat is the plan, the policy.” Tr. at 22:10-11 (Kennedy).
96. The Plaintiffs concluded by stressing that the standard for similarity at the notice stage is “very lenient,” and that the cases they cite “usually result[ ] in the case being certified.” Tr. at 22:12-14 (Kennedy).
97. The Court took the Motion under advisement. See Tr. at 22:25-23:2 (Comí:). The Court noted, however, that it was inclined to grant conditional certification, because it appears that the Plaintiffs have proffered sufficient evidence to meet the “similarly situated” standard at this stage of the litigation. Tr. at 23:6-12 (Court).
LAW REGARDING THE FLSA
1. 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 enforce
1. Employers Under the FLSA.
2. 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.,
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.,
2. The FLSA’s Minimum Wage, Overtime, and Records Requirements.
3, 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 th¿ 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,
4. Under the FLSA, an employer-must pay its employees for the time that it “employ[s]” them, the statutory definition of which means “to suffer or permit to work.” 29 U.S.C. § 203(g). See 29 C.F.R. § 785.6 (“By statutory definition the term ‘employ1 includes (section 3(g)) ‘to suffer or permit to work.’ The act, however, contains no definition of ‘work.’ ”). “ ‘The test for whether an employee’s time constitutes working time is whether the time is spent predominantly for the employer’s benefit- or for the employee’s.’” United Transp. Union Local 1745 v. City of Albuquerque,
[A]n employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays- a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as "much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer. Whether time is spent predominantly for the employer’s benefit or for the employee’s is a question dependent upon all the circumstances of the ease.
Armour & Co. v. Wantock,
5. FLSA § 6 requires employers to pay their employees a minimum wage. See 29 U.S.C. § 206(a). Deductions from employees’ paychecks, for whatever reason, that bring the employees’ pay under the minimum wage violate § 6. See Donovan v. Simmons Petrol. Corp.,
The employee bears the burden of proving he performed work for which he was not properly compensated. Anderson v. Mt. Clemens Pottery Co.,328 U.S. 680 , 687,66 S.Ct. 1187 ,90 L.Ed. 1515 (1946). However, employers have a duty to keep accurate records. If employers do not keep accurate records the employee’s burden is extremely difficult. In order to prevent the employee from being penalized by the employer’s failure to keep adequate records, the Supreme Court held in Anderson that an employee carries his burden by proving that he has “in fact performed work for which he was improperly compensated and ... [producing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Id. Upon' such a showing, the burden shifts to the employer - to produce evidence of the precise amount of work performed or to negate the reasonableness of the inference drawn from the employee’s evidence. If the employer does not rebut the employee’s evidence, then damages may be awarded even though the result is only approximate. The employer cannot complain that the damages lack- the precision that would have been possible if the employer had kept the records required by law. Id. at 687-88,66 S.Ct. 1187 .
Donovan v. Simmons Petrol. Corp.,
6. Section 7(a) sets forth the general rule for calculating overtime. See 29 U.S.C. § 207(a)(1). Because the FLSA does not put a limit “on the number of hours that an employee may work in, any workweek, he may work as many hours a week as he and his employer see fit, [but,
Except as otherwise provided in this section, no employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
29 U.S.C. § 207(a)(1). See 29 C.F.R. § 778.107 (“The general overtime pay standard in section 7(a) requires that overtime must be compensated at a rate not less than one and one-half times the regular rate at which the employee is actually employed.”). The statute’s language demands that an employee receive one and one-half times the “regular rate” of pay for hours that he or she works in excess of forty in a given week. 29 U.S.C. § 207(a)(1).
7. One important principle is that FLSA overtime is based on the number of hours worked in a particular workweek.
The Act does not ... require ... that an employee be- paid overtime compensation for hours in excess of eight per day, or for work on Saturdays, Sundays, holidays or regular days of rest. If not more than .the maximum hours prescribed in the Act are actually worked in the workweek, overtime pursuant to section 7(a) need not be paid.
29 C.F.R. § 778.102. On the other hand, that the FLSA does not require that the employer pay overtime for those hours does not relieve an employer from paying overtime for them if the contract of employment demands them. See 29 C.F.R. § 778.102.
8. For purposes of calculating overtime under the FLSA, however, the only concern is whether the total hours worked in a given workweek are above or below the statutory requirement for overtime compensation. See 29 C.F.R. § 778.102. A second important principle about calculating overtime under the FLSA is that the employee must receive overtime pay at a rate of no less than one and one-half times the “regular rate” for which the employer employs the employee. Walling v. Youngerman-Reynolds Hardwood Co.,
3. Compensable Time Under the FLSA.
9. Congress enacted the Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-262, to define certain activities for which employers need not compensate pursuant to the FLSA.
10. The Supreme Court clarified what constitutes a “principal activity” in IBP, Inc. v. Alvarez,
11. The Tenth Circuit has interpreted what constitutes preliminary, non-compen-sable activities. In Smith v. Aztec Well Servicing Co.,
an employee’s activity “takes all of a few seconds and requires little or no concentration,” then the activity is “properly considered not work at all.” Moreover, “[Requiring employees to show up attheir work stations with such standard equipment [as a hard hat,' safety glasses, earplugs, and safety shoes] is no different from having a baseball player show up in uniform, ... or a judge with a robe.” It is simply a prerequisite for the job, and is purely preliminary in nature. Consequently, the plaintiffs’ travel to and from the well sites was not integral and indispensable to their principal activities merely because they were required to carry their personal safety equipment along with them.
12. Because mandatory pre-shift briefings may be integral and indispensable to an employee’s principal activities, they may form the basis of an FLSA overtime violation. That “certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are ‘integral and indispensable,’ ” however. IBP, Inc. v. Alvarez,
13. Recently, the Supreme Court held that time spent undergoing mandatory security screenings were not compensa-ble. See Integrity Staffing Solutions, Inc. v. Busk,
[I]t is not enough to make an activity compensable under the Fair Labor Standards Act that the employer requires it and it is done for the benefit of the employer. Even activities required by the employer and for the employer’s benefit are “preliminary” or “postlimi-nary” if not integral and indispensable to “the productive work that the employee is employed to perform
Balestrieri v. Menlo Park Fire Prot. Dist.,
14. Finally, the Supreme Court reaffirmed its statement that, if the employee need not perform a task before every shift or the task can be eliminated altogether, it is not integral and indispensable. See Integrity Staffing Solutions, Inc. v. Busk,
4. The FLSA’s Remedies.
15. Actions to enforce the FLSA’s overtime provisions are generally subject to a two-year statute of limitations unless the violation is willful, in which case the limitations period is three years. See 29 U.S.C. § 255(a). A lawsuit to enforce a cause of action for unpaid minimum wages, unpaid ovextime compensation, or liquidated damages
may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the .cause of action accrued ....
29 U.S.C. § 255(a). Willful violations occur when “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [FLSA].” McLaughlin v. Richland Shoe Co.,
16. Beyond the actual damages to cover the amount of unpaid minimum wages or overtime compensation, FLSA § 16(c) allows additional recovery of “an equal amount of liquidated damages.” 29 U.S.C. § 216(c). The Tenth Circuit has noted: “The purpose for the award of liquidated damages , is ‘the reality that the retention of a workman’s pay may well result in damages too obscure and difficult of proof for estimate other than by liquidated damages.’ Renfro v. Emporia,
Under 29 U.S.C. § 260, if in any action to recover unpaid overtime compensation an employer “shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the FLSA,” the court may refuse to award liquidated damages.
All circuits that have considered the matter hold that the trial court may eliminate or reduce the award of liquidated damages only if the employer shows both that he acted in good faith and that he had reasonable grounds for believing that his actions did not violate the Act.
Renfro v. Emporia,
17. FLSA § 17 provides that district courts “shall have jurisdiction, for cause shown, to restrain [FLSA] violations ... including ,.. the restraint of any withholding of payment of minimum wages or overtime compensation found by the court to be due to employees under this chapter .... ” 29 U.S.C. § 217(c). The question whether a court should grant an injunction is left to the, court’s sound discretion. See Mitchell v. Hertzke,
LAW REGARDING COLLECTIVE ACTIONS UNDER FLSA § 216(b)
18. Under FLSA § 216(b), “any one or more employees” may bring an action to recover unpaid overtime wages “for and on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b).. This provision provides the ex-
19. Section 216(b) requires a potential collective-action member to “give his consent in writing” to become a party. 29 U.S.C. § 216(b). Rule 23(b); by contrast, treats each person within the class description as a class member unless he or she opts out. See Fed. R. Civ. P. 23(b). See also Dolan v. Project Const. Corp.,
20. To use § 216(b)’s collective-action mechanism, each employee who wishes to pursue his or her claims under the FLSA. must affirmatively opt into the case in writing. See 29 U.S.C. § 216(b)(“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such an action is brought.”). Potential Plaintiffs must therefore obtain, notice regarding the pending collective action so they can decide whether to participate. See Hoffmann-La Roche Inc. v. Sperling,
21, Although the FLSA does not define the phrase “similarly situated,” the Tenth Circuit has established an ad hoc approach whereby the court determines on a case-by-case basis whether proposed class’ members are similarly situated.' See Thiessen v. Gen. Elec. Capital Corp.,
22. Under the Tenth Circuit’s approach, the court engages in a two-step process. First', at the notice stage before the completion of discovery, the court makes an initial determination whether :the proposed class members are “similarly situated.” Thiessen v. General Electric Capital Corp.,
23. Courts of Appeals which have considered the meaning of “similarly situated” have consistently concluded that the phrase requires a minimal showing. See, e.g., Myers v. Hertz Corp.,
24. The second step occurs at the close of discovery, after all potential plaintiffs have opted into the action. See Thiessen v. Gen. Elec. Capital Corp.,
ANALYSIS
25. The primary issues are (i) whether the Court should conditionally certify this case as a collective action pursuant to FLSA § 216(b); (ii) whether the Court should approve the Plaintiffs’ proposed 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. Because the Plaintiffs have made substantial allegations that the proposed Salary Class and FWW Class are similarly situated with respect to Swire Oil’s alleged FLSA violations, the Court will conditionally certify the case as a collective action. As to the second issue, the Court approves the proposed Notice and Consent Form. The Court will, .however, order that the form include a statement regarding the Plaintiffs’ potential liability for court costs and expenses in the event that they lose. Next, the Court concludes that the methods of notice that the Plaintiffs propose are proper, and, thus, the Court authorizes the Plaintiffs, to use those methods. Last, the Court will order Swire Oil to produce the potential Plaintiffs’ names and known contact information so that notice may be implemented in the manner that the Plaintiffs request.
26.As discussed in the Procedural Background section, supra, the Motion also raises several ancillary requests that relate to the mechanics of notice implementation and opting into this lawsuit. These requests include (i) that the Court order Swire Oil to produce the potential Plaintiffs’ names and contact information within ten days; (ii) that the Court authorize the Plaintiffs to send the Notice and Consent Form within seven days of that information’s production; (iii) that the Court permit the Plaintiffs to hire a third-party class action administration company to mail the Notice and Consent Forms; (iv) that the Court authorize the Plaintiffs to. send a reminder notice thirty days into the opt-in period; (v) that the Court give potential Plaintiffs seventy-five days to opt into this lawsuit; and (vi) that the Court prohibit Swire Oil from communicating with potential Plaintiffs about this lawsuit or its resolution during the seventy-five-day optrin period. Swire Oil does not specifically object to these requests, and the Court concludes that these requests are appropriate. The Court will discuss these requests in conjunction with its analysis of the Plain
27. The Court divides its analysis into two primary sections. First, the Court considers whether the Salary Class and FWW Class members are similarly situated with respect to Swire Oil’s alleged FLSA violations. Second, the Court discusses the proposed Notice and Consent Form’s content, and the Plaintiffs’ requests that relate to the form’s mailing, Swire Oil’s production of class members’ names and contact information, and the mechanics of notice implementation and opting into this lawsuit.
I. THE PROPOSED CLASSES’ MEMBERS ARE “SIMILARLY SITUATED” WITH RESPECT TO SWIRE OIL’S ALLEGED FLSA VIOLATIONS.
28. FLSA § 216(b) allows “any one or more employees” to maintain an action to recover unpaid overtime wages “for and on behalf of himself or themselves and other employees similarly situated.” The Tenth Circuit has approved an ad hoc, two-step approach to determine similarity. See Thiessen v. Gen. Elec. Capital Corp.,
29. For conditional certification at the notice stage, the Tenth Circuit “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.,
30. In making the initial similarity determination, courts evaluate several factors, such as whether potential class members: (i) have the same employer; (ii) are subject to the same employer practices; (iii) suffer the same method of wage calculation; and (iv) allege FLSA violations based on the same conduct. See, e.g., Hasken v. City of Louisville,
31. Courts applying this multi-factor approach emphasize certain factors in light of the facts before them. Some courts focus more on the similarity of the plaintiffs’ and the proposed class members’ job duties and compensation structures. See, e.g., Bradford v. Bed Bath & Beyond, Inc.,
32. Here, the Plaintiffs seek conditional certification of two nationwide classes: (i) the Salary Class, Le.-, Swire Oil operators who were paid on a salary basis without overtime in the last three years; and (ii) the FWW Class, Le., Swire Oil operators who were paid a sub-minimum wage under the FWW method in the last three years. See Motion at 1. The Plaintiffs assert that the Salary Class is similarly situated, because it includes employees with substantively similar positions who Swire Oil misclassified as exempt from overtime pay. See Motion at 17-18. Likewise, the Plaintiffs argue that the FWW Class is similarly situated, because it includes employees with similar job duties who Swire Oil paid according to an improper method for calculating overtime compensation. See Motion at 14-15. The Plaintiffs thus contend that the proposed classes’ members share many of the attributes that courts have found sufficient to meet § 216(b)’s standard: that they have similar job duties, cf. Bradford v. Bed Bath & Beyond, Inc.,
33.In general, if proposed class members are “employees with similar positions,” courts hold that “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.’ ” Foster v. Nova Hardbanding, LLC,
A. THE PLAINTIFFS HAVE MADE “SUBSTANTIAL ALLEGATIONS” THAT THE PROPOSED CLASSES’ MEMBERS ARE EMPLOYEES WITH SIMILAR POSITIONS. ,
34. At the notice stage, the scope of the Court’s similarity analysis is limited to “the substantial allegations of the complaint- along with any supporting affidavits or declarations.” Renfro v. Spartan Computer Servs., Inc.,
35. As outlined in the Court’s Findings of Fact, supra, although Swire Oil hired operators 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 Landry Decl. ¶ 2, at 1 (describing duties such as “rigfging] up jobs,” “servicing,” and “maintaining fluid transfer equipment”); Sutton Decl. ¶2, at 1 (“rig up jobs,” “monitor[] water tank levels,” and “rig down equipment”.); Ruiz Decl. ¶2, at 1 (“rigging up and rigging down
36. To accomplish these duties, all operators 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. Indeed, operators all worked long hours on extended rotations, resulting in many weeks where they logged substantial hours of overtime. See Landry Deck ¶4, at 1 (stating that he “regularly worked 100 hours' or more hours per workweek”); Suttón Deck ¶ 4, at 2 (“120 or more hours per workweek”); Ruiz Deck ¶ 4, at 2 (“80 or more hours per workweek”); Acosta Deck ¶4, at l (“120 or more hours per workweek”); Silva Deck ¶ 4, at 2 (“120 or more hours per workweek”); Constancio Deck ¶ 4, at 2 (“80 or more hours per workweek”); Cook Deck ¶3, at 1 (“84 or more hours per workweek”).
37. Finally, operators in the proposed classes were lower-level employees with limited authority; they reported to job-sites as Swire Oil instructed, followed relevant policies and procedures that pertained to each jobsite, and followed clients’ instructions regarding how work was to be performed. See Complaint ¶¶ 34-38, at 7. See also Landry Deck ¶7, at 2 (stating that he “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 Deck ¶ 7, at 2 (same); Ruiz Deck ¶7, at 2 (same); Acosta Deck ¶7, at 2 (same); Silva Deck ¶ 7, at 2 (same); Con-stancio Deck ¶ 7, at 2 (same);- Cook Deck ¶ 6, at 2 (same).
38.Swire Oil’s principal objection is that, although operators in the proposed classes “engaged in a common enterprise,” their “specific job duties differed.” Response at 4-5." Swire Oil admits that all operators “played some role in setting up the equipment on site and rigging it down after the job was complete.” Response at 4. Swire Oil contends, however, that operators “performed differing duties.” Response at 6. Swire Oil notes, for example, that, whereas Field Supervisors such as Landry “check the frack tanks, check the fluids, and make sure pressure is sustained in accordance with procedures,” Water Transfer Technicians such as Constancio “work with pump and tank operators to run the pump, flow the tank, record how much water was pumped and make sure equipment is maintained.” Response at 4-5. In further contrast, Swire Oil argues, Pump Operators-such as Acosta “monitor levels in tanks and keep in contact with pump operators about water and flow levels,” while Mechanics such as Ruiz “maintain well-site equipment and respond to
39. Swire Oil’s objection is unavailing at this initial stage of the litigation. At the notice stage, the Plaintiffs “need only show that [their] positions [are] similar, not identical, to the positions held by the putative class members.” Pritchard v. Dent Wizard Int’l, Corp.,
40. Here, operators in the proposed classes had a shared responsibility to rig up, monitor, maintain, and rig down water transfer and chemical blending equipment at oil well sites. See 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. Operators all worked long hours performing physically intense duties, and all were lower-level employees with limited authority. See Landry Decl. ¶¶ 2, 4, at 1; id. ¶7, at 2; Sutton Decl. ¶ 2, at 1; id. ¶¶ 4, 7, at 2; Ruiz Decl. ¶ 2, at 1; id. ¶¶ 4, 7, at 2; Acosta Decl. ¶¶ 2, 4, at 1; id. ¶ 7, at 2; Silva Decl. ¶ 2, at 1; id. ¶¶ 4, 7, at 2; Constancio Decl. ¶ 2, at 1; id. ¶¶ 4, 7, at 2; Cook Decl. ¶¶ 2, 3, at 1; id. ¶ 6, at 2. That the operators’ specific job duties at the well sites varied somewhat does not prevent the Court from finding them similarly situated for purposes of conditional certification. See Bustillos v. Bd. of Cnty. Comm’rs of Hidalgo Cnty.,
41. The second inquiry in the similarly-situated analysis is whether the Plaintiffs have made “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Thiessen v. General Electric Capital Corp.,
42. First, with respect to the Salary Class, Swire Oil made a company-wide decision to classify “nearly all,” Motion at 4, operators as exempt from the FLSA’s overtime 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. See also Landry Deck ¶ 6, at 2; Sutton Deck ¶2, at 1; Ruiz Deck ¶ 5, at 2. Although Swire Oil reclassified some of its workforce to non-exempt, status in late 2013 and early 2014, see R,uiz Deck ¶ 6, at 2, some job titles remained misclassified as exempt and were therefore denied overtime pay, see Sutton Deck ¶ 2, at 1. Second, regarding the FWW Class, Swire Oil made a company-wide decision in late 2014 to transition salaried operators - off a flat salary basis and began paying them overtime under the FWW method. See Complaint ¶ 40, at 7. See also Ruiz Deck ¶¶ 4, 8, at 2; Constancio Deck ¶ 5, at 2. Several operators compensated under the FWW method, such as Constancio and Ruiz, experienced numerous'weeks-in which their salaries fell below the $7.26 per hour minimum wage rate. See Constancio Paystub at 1; Ruiz Paystubs at 1-2; Ruiz Deck ¶ 6, at 2; Constancio Deck ¶ 5, at 2. Finally, with respect to both classes, the declarants assert that they are aware of other Swire Oil operators who were denied overtime as salaried employees and who were paid a sub-minimum wage under the FWW method. See Landry Deck ¶9, at 3; Sutton Deck ¶ 9, at 3; Ruiz Deck ¶ 9, at 3; Acosta Deck ¶ 9, at 3; Silva Deck ¶ 9, at 3; Con-stancio Deck ¶ 9, at 3; Cook Deck ¶ 7, at 2.
43.Swire Oil advances several arguments disputing that it had a “single ‘decision, policy, or plan’ ” regarding the Salary Class or the FWW Class, Response at 3; none are persuasive at this stage of the litigation. Swire Oil contends, first, that it did not have a single decision, policy, or plan to violate the Salary Class’ FLSA-rights, because, if “ ‘nearly1 all of Swire’s manual laborers.were paid on a salaried basis,” then “some manual laborers were-■not paid in this manner.” Response at 3. It' is immaterial, however, that some operators had different pay provisions. Swire Oil’s decision to classify as exempt-certain operators was singular as to only those operators; operators compensated under different methods are, by definition, outside the Salary Class’ scope, and their existence does not defeat the singularity of Swire Oil’s decision with respect to its salaried operators. Second, and relatedly, Swire Oil notes that “[s]ome Plaintiffs admit that they were paid hourly for most of 2014, but allege other positions were improperly classified as exempt.” Response at 3. I-n Swire Oil’s view, “[t]hat is not evidence of a single ‘decision, policy, or
44.Finally, Swire Oil argues that the Plaintiffs “are just asserting the fact that some of these employees were classified as salary and they haven’t identified any decision or policy of Swire to do that.” Tr. at 13:9-13 (Gatling). At this stage, however, the Plaintiffs need not identify with specificity an official manifestation of Swire Oil’s decision to not pay overtime. “[IJf putative class members are employees with similar positions, ‘allegations that the defendants ‘engaged in a pattern or prac-' tice of not paying overtime [are] sufficient to allege that plaintiffs were together the victims of a single decision, policy or plan.’ ” Foster v. Nova Hardbanding, LLC,
45. Turning to the FWW Class, Swire Oil notes that it began transitioning hourly workers to the FWW method in late 2014, “at least a year and a half after Swire had allegedly made another alleged ‘decision, policy, or plan’ to improperly classify certain- positions as -exempt.” Response at 3-4. Swire Oil contends that these “varying alleged decisions” do not amount to a “single ‘decision, policy, or plan’ by Swire to deprive [the Plaintiffs] of their rights under the FLSA.” Response at 4. This argument improperly presupposes the existence of one, not two, classes. Although Swire Oil’s decisions to classify as exempt certain operators and then to pay operators under the FWW method do not together constitute a single “decision, policy, or plan,” the Plaintiffs do not seek to certify one class of operators based on a unified theory of both overtime and minimum-wage violations. Rather, the Plaintiffs define two classes that correspond individually to each compensation decision, he., the Salary Class corresponds to Swire Oil’s single, decision regarding salary compensation, while the FWW Class corresponds' to Swire' Oil’s single decision regarding FWW-method compensation. In short, although Swire Oil is correct that the Plaintiffs identify two separate compensation decisions, the Plaintiffs seek to certify two classes, each of which is defined in relation to a single decision.
46. Swire Oil contends, moreover, that operators ■ within the FWW Class were “subject to differing methods of pay at' differing times.” Response at 3. Swire Oil notes that it did not' transition all operators to the FWW method at the'same time; for example, it paid Fluid Technicians under the’SWW method, before it paid Service Operators and Service, Specialists under that method. See Tr. at 13:20-23 (Gatling)(relying on Tucker Deck). Thus, Swire Oil concludes, there was no single decision “that would apply to all of these employees.” Tr. at 13:24-14:2
47.Ultimately, the Plaintiffs at this stage of the litigation need allege only that Swire Oil “engaged in a pattern or practice” of not paying potential FWW Class members the minimum wage to allege that those members “were together the victims of a single decision, policy or plan.’ ” Foster v. Nova Hardbanding, LLC,
48. Swire Oil advances two final arguments regarding the FWW Class: that some FWW Class members “received notice of a change to the FWW method of payment[ ] while others did not,” and that Swire Oil explained the FWW method to some members and "not to others." Response at 3 (citing Motion at 4, 6). It is immaterial, however, that FWW Class members had varying levels of knowledge regarding their compensation. As the Court has already explained, the Tenth Circuit “requires nothing more than substantial allegations that the putative class members were together the victims of a single decisión, policy, or plan.” Thiessen v. General Electric Capital Corp.,
C. THE PROPOSED CLASSES’ MEMBERS ARE SIMILARLY SITUATED DESPITE SOME OPT-IN PLAINTIFFS’ PRIOR SETTLEMENT OF CLAIMS AGAINST SWIRE OIL.
49. Swire Oil contends, finally, that the proposed classes’ members are not similar
50. Swire Oil is correct that those employees who previously settled their claims and then terminated their employment at Swire Oil are not entitled to further recovery for unpaid wages. This fact does not, however, defeat conditional certification. That some employees settled their claims is irrelevant to the viability of other employees’ claims under the FLSA. Compare 29 U.S.C. § 216(b) (requiring employees who wish to pursue FLSA claims to affirmatively opt into the case in writing to be bound), with Fed. R. Civ. P. 23(b) (treating individuals within the class description as class members unless they affirmatively opt out). See Dolan v. Project Const. Corp.,
51. Here, the Plaintiffs contend that six of the employees whom Swire Oil identifies as having previously released their claims against it continued to work for Swire Oil and suffered additional FLSA violations after their respective settlement dates. See Reply at 6. These employees include Evans, Murphy, Salinas, Tamayo, Valdez, and Wilhite. See Reply at 6 (noting that Evans, Murphy, Salinas, Valdez, and Wilhite continued working at Swire Oil after their September 1, 2014, settlement date, and that Tamayo continued working after his August 1, 2015, settlement date). The Court concludes that these employees are entitled to join this suit, because they have potential FLSA claims that post-date their release of claims against Swire Oik The Court also concludes, however, that operators who terminated their employment at Swire Oil after releasing their claims should be excluded from the pro
D. THE PROPOSED CLASSES’ SCOPES ARE APPROPRIATE.
52. Swire Oil .requests that, should the Court grant conditional certification, it limit the proposed classes’ scopes to employees in New Mexico, Texas, Oklahoma, and North Dakota.
53. Swire Oil is correct that, in general, alleged FLSA violations at one of a company’s multiple locations are insufficient, without more, for company-wide notice. See, e.g., Huaman v. Ojos Locos Sports Cantina L.L.C.,
54. Here, there is a “reasonable basis to conclude,” McCloud v. McClinton Energy Grp., L.L.C.,
55. The Plaintiffs need not, as Swire Oil suggests, proffer evidence of violations at every Swire Oil location for the Court to authorize nationwide notice. See Response at 7-8 (arguing that notice should be limited to employees in states in which the declarants worked). Even allegations of company-wide pay practices stemming from employees’ first-hand experiences at a single location may be sufficient to support company-wide notice. In Hose v. Henry Indus., Inc., for example, the United States District Court for the District of Kansas authorized notice to employees at a company’s twenty-five facilities in eleven states based on four employees’ experiences at a single location in: Missouri. See
II. THE COURT APPROVES THE PROPOSED NOTICE AND CONSENT FORM AND GRANTS THE PLAINTIFFS’ REQUESTS THAT RELATE TO THE FORM’S [MAILING, SWIRE OIL’S PRODUCTION OF POTENTIAL CLASS MEMBERS’ NAMES AND' CONTACT INFORMATION, AND THE MECHANICS OF NOTICE IMPLEMENTATION AND OPTING INTO THIS LAWSUIT.
57. The Plaintiffs. submit a proposed Notice and Consent Form, and make requests that relate to the form’s mailing and Swire Oil’s production of potential class members’ names and contact information. The Plaintiffs also raise. several ancillary requests that relate to the mechanics of notice implementation and opting into this lawsuit. Swire Oil’s sole objection to all these requests pertains to the Notice and Consent Form’s content. Accordingly, the Court begins its analysis with the form’s content and then turns to the Plaintiffs’ remaining requests.
A. THE COURT APPROVES THE NOTICE AND CONSENT FORM.
58. The proposed Notice and Consent Form briefly describes this case, instructs potential Plaintiffs on how to opt into the case, explains that the FLSA prohibits 1 retaliation for participating in the case, arid describes the effects of joining the case. See Notice and Consent Form at 1-3. Swire Oil’s objection relates to section six, entitled ■ “Effect of Joining the Lawsuit.” That section provides, in relevant part:
If you join this case by filing your consent, you agree to be represented by the attorneys identified below. The Plaintiffs’ attorneys are experienced in representing employees who claim they are owed wage. If you join this case by filing your consent, you will be bound by the judgment of the Court on. all issues of the case, whether favorable or unfavorable. If you win, you may be eligible for a monetary award, including overtime wages and liquidated damages. If you lose, no money will be awarded, and you will not be able to file another lawsuit regarding the matters raise in this lawsuit.
Swire Oil contends that, although this section addresses the potential for an unfavorable outcome for the Plaintiffs, it does not indicate that the Plaintiffs may be responsible for paying court costs in the event that they lose. See Response at 8-9. Swire Oil thus requests that the following sentence be appended to the above paragraph: “Also, if plaintiffs lose, they could be responsible for paying court costs and expenses.” Response at 8-9. The Plaintiffs demur, however, arguing that such language “would only serve to dissuade people from exercising their rights and is clearly retaliatory in nature.” Reply at 8. The Court disagrees.
59. “Under the FLSA, the Court has the power and duty to ensure that the notice is fair and accurate, but it should not alter plaintiffs proposed notice unless such alteration is necessary.” Creten-Miller v. Westlake Hardware, Inc.,
60.Here, the Court concludes that, on the whole, the proposed Notice and Consent Form is “timely, accurate, and informative.” Hoffmann-La Roche Inc. v. Sperling,
61. In short, the Court approves the Notice and Consent Form, but sustains Swire Oil’s objection relating to the form’s content. The Court' thus requires that the Notice and Consent Form include, with some modification, the' warning about court costs and expenses that Swire Oil requests.
B. THE COURT ORDERS SWIRE OIL TO PRODUCE ALL POTENTIAL PLAINTIFFS’ NAMES AND KNOWN CONTACT INFORMATION WITHIN TEN DAYS.
62. To ensure that the Notice and Consent Form reaches all potential class mem
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 contend 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. Swire Oil does not object to this request.
63. The Court concludes that this request is appropriate, because the information that the Plaintiffs seek is necessary to alert potential class members of this collective action so that they can decide whether to participate in it. See Hoffmann-La Roche Inc. v. Sperling,
C. THE COURT AUTHORIZES TWO MAILINGS OF THE NOTICE AND CONSENT FORM VIA REGULAR MAIL, EMAIL, AND TEXT MESSAGE, AND AUTHORIZES CLASS MEMBERS TO EXECUTE THEIR CONSENT FORMS ELECTRONICALLY.
64. The Plaintiffs request that the Court authorize two mailings of the Notice and Consent Form to all potential Plaintiffs via regular mail, email, and text message — one initial mailing within seven days of receiving the class list from Swire Oil, and one reminder notice thirty days into the opt-in period. See Motion at 20-23. The Plaintiffs offer that their “counsel will oversee the mailing ... of such notices and pay the up-front charges for same (postage, copying, etc.),” but also request authorization for their counsel to “hire a third-party class action administration company to conduct the actual mailing of the forms if it deems appropriate.” Motion at 20. In addition, the Plaintiffs request that the Court authorize class members to execute their consent forms electronically. See Motion at 22. Swire Oil does not object to these requests.
66. The Court concludes that the methods of notice that the Plaintiffs propose are proper. The Court finds persuasive the Plaintiffs’ argument that communication via email and text message will “increase the chance of the class members receiving and reading the notice,” especially because class members likely are “dispersed to various wellsites around the country and may be away from their homes and addresses of record for weeks or months at a time.” Motion at 21. Acknowledging its efficacy and common usage, courts increasingly have authorized notice by email in FLSA cases. See, e.g., Butler v. DirectSAT USA, LLC,
66. The Court also concludes that a follow-up notice thirty days into the opt-in period is appropriate. Although some courts decline to authorize the issuance of a reminder in FLSA cases, reasoning that it “is unnecessary and potentially could be interpreted as encouragement by the court to join the lawsuit,” Witteman v. Wis. Bell, Inc.,
67. Finally, the Court concludes that class members should be allowed to electronically execute their consent forms. Recognizing that “we live in a time when all manner of commercial transactions are routinely cemented by electronic submission,” Mraz v. Aetna Life Ins. Co.,
68. The Plaintiffs make two final unopposed requests: (i) that the Court give potential- class members seventy-five days to opt into this lawsuit; and (ii) that the Court prohibit Swire Oil from communicating with potential class members about this lawsuit or its resolution during the seventy-five day period. See Motion at 24. Courts within the Tenth Circuit regularly authorize opt-in periods of up to ninety days, reasoning that “90 days represents a reasonable period in which to attempt to contact (and repeat efforts to contact, when necessary) potential class members.” Wass v. NPC Int’I, Inc.,
IT IS ORDERED that (i) the requests in the Plaintiffs’ Motion for Conditional Certification, Hoffmann-La Roche Notice, and Expedited Ruling, filed January 13, 2017 (Doc. 35), are granted in part; (ii) the following classes are conditionally certified as collective actions pursuant to § 216(b) of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219:
All 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 All of Defendants’ current and former operators throughout the United States who were paid under the fluctuating work week method during the last three years;
(iii) former operators falling within the above class definitions who previously have settled overtime or minimum wage claims against the Defendants, and who then terminated their employment upon releasing their claims, are excluded from these collective actions; (iv) the Plaintiffs’ Proposed Notice and Consent Form, filed January 13, 2017 (Doc. 35 — 1), is approved, except that the Plaintiffs must ad.d the following sentence to the end of the first paragraph in section six: “Also, if Plaintiffs lose, they could be responsible for paying court costs and expenses (not including Defendants’ attorney fees).”; (v) the Defendants must produce within ten days in an electronic format the names and all known addresses, phone numbers, email addresses, dates of birth,, and dates of employment for all class members- employed within the three years preceding this lawsuit’s filing; (vi) the Plaintiffs may transmit notice of this action via regular mail, email, and text message within seven days of receiving the class list from the Defendants; (yii) the
Notes
. Swire Oilfield Services U.S. Holdings, L.L.C., a Delaware limited liability company, owns Swire Oilfield Services, L.L.C. and Swire Water Solutions, Inc. See Original Complaint, Collective Action, Class Action, and Jury Demand ¶ 18, at 4, filed June 21, 2016 (Doc. l)("Complaint”). Swire Oilfield Services Holdings, UK Ltd., a privately-owned company organized under the laws of Great Britain, owns Swire Oilfield U.S. Holdings, L.L.C. See Complaint ¶ 18, at 4. The Plaintiffs allege that, "[f]or all intents and purposes, Defendants Swire Oilfield Services, L.L.C. and Swire Water Solutions, Inc, are the same company.” Complaint ¶ 19, at 4-5. They share the same corporate management, advertise on the same, webpage, intermingle employees, and share equipment. See Complaint ¶ 19, at 4-5, Further, at various times, some proposed class members received paychecks from both Swire Oilfield Services, L.L.C. and Swire Water Solutions, Inc. See Complaint ¶ 19, at 5. Accordingly, the Court will collectively refer to the Defendants as "Swire Oil.”
. The Court’s citations to the hearing transcript refer to the court reporter’s original, unedited version. Any final transcript may contain slightly different page and/or line numbers,
. The FLSA now contains a description of what is included in the regular rate, but still contains no definition precisely setting forth how it is calculated. See Scott v. City of New York,
. The Portal-to-Portal Act provides:
[N]o employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, ... on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee ...—
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
29 U.S.C. § 254(a)(emphasis added).
. Swire Oil presumably would have added to this list Louisiana, had the Plaintiffs attached the Cook Decl. to the Motion and not to the Reply.
. Perhaps implicitly acknowledging the supe-. riority of electronic communication, even the United States Postal Service accepts job applications through an online process and not via' first-class mail. See USPS® Online Job Application Process, available at https://about.usps. com/careers/j obapplicationAvelcome.htm (last accessed April 28, 2017),