Before the Court are various motions filed by the parties: (1) Defendant Premier Directional Drilling, L.P.’s (“Premier”) Motion for Summary Judgment as to all Plaintiffs (Dkt. # 163); (2) Plaintiffs William Parrish (“Plaintiffs” or “Parrish”), on behalf of himself and all others similarly situated,
After careful consideration of the memo-randa in support of and in opposition to the motions, the Court, for the reasons that follow, DENIES Premier’s motion for summary judgment (Dkt. # 163), GRANTS Plaintiffs’ motion for summary judgment (Dkt. # 150), OVERRULES IN PART, DENIES IN PART, AND DENIES AS MOOT IN PART Plaintiffs’ Objections and Motions to Strike (Dkts. ##170, 172), and DENIES AS MOOT Premier’s motion to strike (Dkt. #187).
BACKGROUND
Premier is a drilling company with oil and gas operations throughout several locations in the United States, including the Eagle Ford Shale in Texas. (Dkt. # 1 at 3.) Premier is based out of Houston, Texas, and employs individuals as Directional Drillers Consultants (“DDs”) and Measurement While Drilling Consultants (“MWDs”). (Id.) According to Plaintiffs, Premier employs DDs and MWDs as both W-2 employees and independent contractors, but there are no appreciable differences between the two classifications. (Id.) Plaintiffs assert that Premier did not adequately compensate DDs and MWDs, labeled as independent contractors, who worked in excess of forty hours. (Id.) On May 5, 2016, Plaintiffs filed a collective-action suit against Premier, alleging claims for violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 206, 207, and 215(a)(2). (Id. at 5.)
On July 21, 2017, the parties filed the pending motions for summary judgment. (Dkts. ## 150, 163.) Each party filed their respective responses. to the motions for summary judgment on August 18, 2017
I. Premier’s Motion for Summary Judgment
Premier has filed a motion for summary judgment on all of Plaintiffs’ claims. (Dkt. # 163.) Premier contends that summary judgment is appropriate because the plaintiffs are all independent contractors for whom the FLSA does not apply. (Id. at 10.)
A. Applicable Law
A movant is entitled to summary judgment upon showing that “there is no genuine dispute as to any material fact,” and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Meadaa v. K.A.P. Enters., L.L.C.,
The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett,
In deciding whether a fact issue has been created, the court must draw all reasonable inferences in favor of the nonmov-ing party, and-it “may not make credibility determinations or weigh the evidence.” Tiblier v. Dlabal,
B. Fair Labor Standards Act
The Fair Labor Standards Act, 29 U.S.C. § 201, et-seq. (“FLSA”), mandates that “no employer may employ any nonexempt employee ‘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.’ ”
An employee who brings a FLSA action for unpaid overtime compensation must demonstrate, by a preponderance of the evidence: “(1) that there existed an employer-employee relationship during the unpaid overtime periods claimed; (2) that the employee engaged in activities within the coverage of the FLSA; (3) that the employer violated the FLSA’s overtime wage requirements; and (4) the amount of overtime compensation due.” Johnson v. Heckmann Water Resources (CVR), Inc.,
Once the employee establishes his prima facie case, the burden, shifts to the employer to either (1) show evidence of the precise amount of work performed or (2) negate the reasonableness of the inference to be made from the employee’s evidence. Harvill v. Westward Commc’ns, L.L.C.,
C. Analysis
The issue the Court must decide in regard to Premier’s motion for summary judgment is whether Plaintiffs are employees of Premier within the meaning of the FLSA, or independent contractors and thus not subject to the FLSA’s compensation requirements.
The determination of whether Plaintiffs are employees under the FLSA is a legal, not a factual, finding. See Lindsley v. BellSouth Telecomms. Inc.,
The five non-exhaustive factors most often considered by the courts are: “(1) the degree of control exercised by the alleged employer; (2) the extent of the relative investments of the worker and the alleged employer; (3) the degree to which the worker’s opportunity for profit or loss is determined by the alleged employer; (4) the skill and initiative required in performing the job; and (5) the permanency of the relationship.” Hopkins,
1. Degree of Control
Degree of control refers to whether the plaintiffs possess “real independence” in the economic relationship. Hopkins,
Premier argues that at no time did Plaintiffs, labeled by Premier as independent contractor DDs (“IC DD”), receive any supervision for their work. (Dkt. # 163 at 15.) Additionally, Premier asserts that Plaintiffs received limited safety training, but no other training, performance reviews, or discipline from a Premier supervisor. (Id.; Dkt. # 152 at 33; Parrish Dep. at 172:11-173:7, 182:9-18, Ex. 15; Ellestad Dep. at 154:16-20; Robbins Dep. at 159:4— 161:8; Menard Dep. at 820:5-322:13; Schmidt Dep.' II at 130:12-131:12; Oliver Dep. at 50:2-5.) Instead, Premier argues that Plaintiffs were highly skilled individuals who had years of experience and were paid up to $300,000 per year for their work and, therefore, needed no direct oversight or supervision from Premier. (Dkt. #163 at 14.)
Premier also contends that IC DDs had to make their own decisions out in the field regarding what direction to drill, for instance, without any oversight from Premier. (Id.; Oliver Dep. at 93:3-18.) Premier also asserts that Plaintiffs had some control over their schedule and could accept or reject work as they needed. (Dkt. # 163 at 16; Parrish Dep. at 133:14-134:9, 248:11-21, 251: 10-22, 253: 13-256:2; El-lestad Dep. at 80:20-81:11; 123:1-4,-135:14-16; Robbins Dep. at 136:19-137:9.)
In response, Plaintiffs assert that IC DDs — who were technically labeled as an independent contractors but functioned in the same capacity as those DDs actually employed by Premier — were still placed under the supervision of a Premier DD Coordinator, who supervised IC DDs in the following ways: (1) interviewing, hiring, promoting, and terminating (Menard Dep. 63:18-23; Kennedy Dep. 169:24:170:17, 284:6-9; Oliver Dep. 31:3-32:6,-48:22-49:23, 50:18-51:01, 52:9-53:16, 54:21-58:9, 58:17-59:12, 118:17-120:12) (2) swapping employees from DDs employed with Premier to IC DDs (Geoffroy Dep. 45:22-46:02); (3) approving time-off requests for IC DDs (Kennedy Dep. 242:11-19; Oliver Dep. 86:25-86:25); (4) providing
Additionally, Plaintiffs assert that Premier had total contractual control over everything each of its IC DDs did on the wellsite, through its Master Services Agreements (“MSAs”) with Premier’s clients and through a Consultant Agreement that Premier required Plaintiffs to sign. (Id. at 15; Dkt. # 149-2.) According to Plaintiffs, through the Consultant Agreements, Premier dictated its expectations to Plaintiffs and that it maintained the right to observe and inspect their work performance and to ensure work was béing performed in accordance with Premier’s policies and procedures. (Id.) Plaintiffs further contend that Premier required IC DDs to utilize approved staffing companies, complete certain paperwork, and sign non-disclosure agreements prior to assigning the IC DDs to dny jobs.’ (Id. at 15-16; Geoffroy Dep. 39:7-41:16, 50:7-12, 59:20-23, 62:4-63:4; Kennedy Dep. 108:8-23.) Plaintiffs assert that these requirements also included that IC DDs obtain background checks and drug testing. (Dkt. # 175 at 15; Geoffroy, at 42:7-13, 61:17-20.)
Here, Plaintiffs’ evidence that Premier exercised control over the IC DDs work schedules and subjected them to certain personnel policies, such as drug testing and safety trainings, as well as requiring non-disclosure agreements, favors a finding • of employee status. Nevertheless, Premier has presented evidence that Plaintiffs were highly skilled workers who performed work without any additional training, and without significant direct supervision at the work site. Such evidence supports Premier’s position that Plaintiffs were independent contractors. Accordingly, because the parties’ evidence does not substantially' "favor either classification, this factor is neutral in the economic dependence analysis.
2. Relative Investments
Under this factor, courts balance the, alleged employee’s investment against the employer’s investment in the specific job ■ at hand. Thibault,
Premier contends that' Plaintiffs invested thousands of dollars in their own directional
Plaintiffs, on the other hand, argue that there is no question that Premier made substantial investments in tlie job at hand that are incomparable to anything Plaintiffs may have invested. (Dkt. # 175 at 18.) For instance, Plaintiffs cite evidence of Premier’s operational costs for office space, insurance, employee benefits, computers, accounting and payroll- services, etc., totalling, millions of dollars. (Id.) Plaintiffs contend that they only spent hundreds of dollars a year, if even that much. (Id. at 19.) Plaintiffs assert that the Court should only compare the investments into Premier and not any side jobs or investments in their consulting firms when comparing the two..(Id.)
Despite the parties varied interpretation of this factor,
Here, in general, the IC DD’s job was to oversee and steer the direction of the automatic drill on a job site, normally by way of a “touch screen.” (See, e.g., Dkt. # 177-1 at 61, 75.) To perform this function, Plaintiffs provide evidence of Premier’s Chief Financial Officer who testified that Premier provided IC DD’s oilfield equipment, including (1) spending at least $800,000 each on 16 “EVO tools”
On the evidence presented to the Court in regard to this factor, the Court finds that Plaintiffs’ investment in the job at hand is significantly less than Premier’s investment in the same. Accordingly, this factor favors a finding of employee status.
3. Opportunity for Profit and Loss
The profit and loss factor favors independent contractor status when the alleged employee has significant influence over his opportunity for profit and loss. Where the worker can control his own costs and has the responsibility of pursuing consistent work, the opportunity for profit and loss is greater. Thibault,
In Carrell, the Fifth Circuit found the fact that the defendant controlled the welders’ hours of work and hourly rate was indicative of the defendant’s control over the welders’ profits. Carrell,
In support of independent contractor status for this factor, Premier contends that Plaintiffs could demand more money for their work or offer a discount, with rates ranging from $425 to $1,500 per day. (Dkt. #163 at 18.) Premier also argues that Plaintiffs’ own tax returns demonstrate that only they could control their costs. (Id. at 18-19.) For instance, Premier asserts that Plaintiffs determined what vehicles and tools they used, what protective gear and office supplies they bought, their food and entertainment costs, what insurance they obtained, and what cell phone and internet costs they incurred. (Id. at 19.) Premier also contends that Plaintiffs earned income separate from their work at Premier, including one Plaintiff operating a goat farm, and two other Plaintiffs provided directional drilling services to other companies. (Id.) Additionally, Premier asserts that Plaintiffs had significant control over their work schedules, which allowed them to take weeks off between jobs. (Id.)
Plaintiffs, on the other -hand, contend that Premier controlled every aspect of an IC DD’s profit or loss. (Dkt. # 175 at 19.) Plaintiffs assert that Premier unilaterally decided to pay an TO DD a day rate regardless of the number of hours worked, not a salary. (Id.) Plaintiffs argue that they were required by Premier to work twelve hours a day, just like Premier’s employed DDs. (Id.) According to Plaintiffs, they were not able to negotiate their rates of pay, nor turn down a job. (Id.) Additionally, Plaintiffs argue that Premier did hot share its profits or losses with IC DDs, and that the 1C DDs did not have to return any pay if a job was completed in less time than anticipated. (Id.) Plaintiffs also argue that they could not subcontract out their work at Premier. (Id.) Plaintiffs also rely on their Consultant Agreement
The record in this case indicates that Premier,, and not Plaintiffs, determined how much each IC DD would be paid for their daily rate. (Dkt. # 149-1 at 315-16.) And, although an IC DD could ask for a higher rate of daily pay, they generally could not negotiate their daily rate. (Id. at 314.) Additionally, Premier' required IC DDs to work a twelve-hour shift. (Id. at 201-02.) Thus, it appears that Premier had near complete control over Plaintiffs’ pay and schedule. The record also indicates that when Plaintiffs were called for work by Premier, they generally did not turn work down for fear they would not be called back for additional jobs. (Id. at 282-83.) And, although they often had time off between jobs and may have had other drilling work, the evidence of Plaintiffs’ tax returns does not sufficiently demonstrate a true ability to control their profits and losses separate from their work with Premier. Accordingly, the Court finds that during the time that Plaintiffs worked for Premier, the company paid them a nonnegotiable daily rate and controlled the number of hours that they worked, “severely limiting any opportunity for profit or loss.” Cromwell,
4. Skill and Initiative
When weighing this factor, courts ■ consider the initiative needed in both daily tasks and in the long-term success of the worker, as well as the amount of skill required for the actual tasks the worker performs. When a worker is assigned daily tasks with limited discretion, this factor indicates employee status. Cromwell,
Premier contends that Plaintiffs’ work was highly specialized, and Plaintiffs were experts in directional drilling who could come in on a project and give'advice to an-operator on how best to use equipment to achieve a smooth wellbore that hits the ideal zone. (Dkt. # 163 at 13.) Premier argues that Plaintiffs achieved this specialized training through on-the-job training and years of experience. .(Id. at 14.)
Plaintiffs, on the -other hand, argue that there are no differences from IC DDs and employee DDs who worked for Premier. (Dkt. # 175 at 10.) Plaintiffs contend that they both had the same skills and training levels and that they were both supervised by Premier’s DD Coordinators. (Id.) In support, Plaintiffs rely on. deposition testimony from Premier’s management employees, who concede that there are no appreciable differences in the skill set and the work performed on the job between employee DDs and IC DDs. (Dkt. # 150-2 'at 212, 253-54.)
- Here, there is no dispute that Plaintiffs, as IC DDs, are highly skilled individuals who performed their directional drilling tasks using their own discretion, thus favoring a finding of independent contractor status. Nevertheless, there does not appear
5. Permanency of the Relationship
This factor considers the length of time the alleged employee worked for the- employer, the basis on which the worker is hired, and the exclusivity of the'work. The longer a worker remains exclusively at one company, the more likely the worker is an employee. Cromwell,
Premier argues that Plaintiffs’ work was short-term and only on a project-by-project basis. (Dkt. # 173 at 11.) Premier contends '.that Plaintiffs (1) often had weeks off between projects; (2) were .free to accept or decline projects; (3) were not guaranteed future work; (4) could find their own replacement; and (5) controlled their own schedule by choosing which jobs they would accept. (Id at 11-12.) Premier also asserts that Plaintiffs could do other work between Premier projects, including work for'Premier’s competitors. (Id. at 12.)
In response, Plaintiffs contend that Premier engaged them in long-term work, and that only one Plaintiff worked less than six months for Premier.' (Dkt. # 176 at 22.) Plaintiffs also assert that their breaks in time between jobs with Premier are consistent with the employee DDs as well as the industry standards for this type of employment. (Id.)
The deposition testimony on record in this- case indicates varying dates for each Plaintiff in regard to the time span that they performed work as an IC DD for Premier. One plaintiff did work at Premier from 2012 until March 2015, or approximately. three years. (Dkt. # 174-5 at 3-4.) However, three other plaintiffs in this case did work for Premier for, respectively (1) two months (Dkt. #174-10 at 6), (2) seven months (Dkt. # 174-11 at 14), and (3) ten months (Dkt. # 174-12 at 18-19). Additionally, the remaining plaintiff in this case worked for Premier for only four days. (Dkt. # 174-19.) :
A' line of cases from the Fifth Circuit has suggested that, where a plaintiff works for a defendant for ten months, the engagement begins to resemble an employment relationship. Robicheaux,
Given the overall short length of time the Plaintiffs in this case worked for Premier — and the fact that one plaintiff only worked four days for Premier — the Court finds this factor weighs in favor of independent contractor status.
6. Other Factors
Premier urges the Court to consider other factors, including (1) that each Plaintiff signed an express agreement with Premier acknowledging their status as an independent contractor; (2) the industry custom and standard; and (3) the fact that Plaintiffs, as highly-compensated workers, are not the workers the FLSA is designed to protect. (Dkt. # 163 at 20-21.)
i. Express Agreement
The Fifth Circuit has instructed that “[t]he contractual designation of the worker as independent contractor is not necessarily controlling.” Thibault,
ii. Industry Standard
Premier contends that it is customary in the industry for certain kinds of workers to be independent contractors. (Dkt. # 163 at 20.) Premier argues that fluctuations in the oilfield industry, combined with the high level of skill required to do the kind of directional drilling that Premier’s customers engage in, makes it necessary for oilfield companies like Premier to have the flexibility to hire independent contractors.
“Case law is somewhat sparse and inconsistent with respect to whether industry custom or standard may be considered in determining whether individuals are independent contractors or employees under the FLSA.” Mack v. Talasek,
While the Court recognizes that, due to the nature of oilfield work, it may be industry standard to employ some workers as independent contractors, the fact that here directional drillers were employed both as employees and as independent contractors cuts against Premier’s argument. Furthermore, deposition testimony from Premier’s management indicates that there are no appreciable differences between the two. (See Dkt. # 150-2 at 212, 253-54.) Thus, the Court’s consideration of industry standard does not support Premier’s argument that Plaintiffs’ were independent contractors.
iii. FLSA’s' Purpose
Premier also contends that the Court should consider that Plaintiffs are not the sort of low-wage employees the FLSA is designed to protect. (Dkt. # 163 at 21.) Indeed, the Fifth Circuit recognized in Usery v. Pilgrim Equipment Co., Inc., the purpose of the FLSA “is to ‘eliminate low wages and long hours’ and ‘free commerce from the interferences arising from production of goods under conditions that were detrimental to the health and well-being of workers.’”
D. Conclusion
The Court’s consideration of employee status is very fact dependent, and here, “as with most employee-status cases, there are facts pointing in both directions.” Herman v. Express Sixty-Minutes Delivery Serv., Inc.,
II. Plaintiffs’ Objections and Motions to Strike
Plaintiffs filed objections to, and motions to strike, (1) Premier’s statement of undisputed facts, and (2) certain affidavit testimony. (Dkts. #'# 170, 172.) The Court has considered both the evidence and facts proffered by Premier, and Plaintiffs’ objections, and to the extent the Court has regarded portions. of the evidence and facts as relevant, admissible, and necessary to the resolution of particular summary judgment issues, it hereby OVERRULES the evidentiary objections and DENIES the motions to strike. To the extent the Court has not relied on other evidence or facts about which Plaintiffs’ complain, the remaining objections and motions to strike are DENIED AS MOOT.
III. Plaintiffs’ Motion for Summary-Judgment
Plaintiffs filed their own motion for summary judgment on (1) their status as employees of Premier; (2) back wages owed to them under the FLSA; and (3) Premier’s good faith defense. (Dkt. # 150.) Because the Court has already determined above that Plaintiffs were employees of Premier for FLSA purposes, the Court will GRANT Plaintiffs’ motion as to this issue. Thus, the Court will only address Plaintiffs’ motion for summary judgment as to their alleged back wages and Premier’s good faith defense.
A.. Applicable Law
A movant is entitled to summary judgment upon showing that “there is no genuine dispute' as to any material fact,” and the movant is entitled to judgment as a ■ matter of law. Fed, R. Civ. P. 56(a); see also Meadaa v. K.A.P. Enters., L.L.C.,
The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett,
■ In deciding whether a fact issue has been created, the court must draw all reasonable inferences in favor of the nonmov-ing party, and it “may not make credibility determinations or weigh the evidence.” Tiblier v. Dlabal,
B. Fair Labor Standards Act
The Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), mandates that “no employer may employ any nonexempt employee ‘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.’ ” Garcia v. U Pull It Auto & Truck Salvage, Inc.,
An employee who brings a FLSA action for unpaid overtime compensation. must demonstrate, by a preponderance of the evidence: “(1) that there existed an employer-employee relationship during the unpaid overtime periods claimed; • (2) that the employee engaged in activities within the coverage of the FLSA; (3) that the employer violated the FLSA’s overtime wage requirements; and (4) the amount of overtime compensation due.” Johnson v. Heckmann Water Resources (CVR), Inc.,
Once the employee establishes his prima facie case, the burden shifts to the employer to either (1) show evidence of the precise amount of work performed or (2) negate the reasonableness of the inference to be made from the employee’s evidence. Harvill v. Westward Commc’ns, L.L.C.,
C. Back Wages
Plaintiffs move for summary judgment on (1) the number of hours they worked in each workweek, (2) their rate of pay for each workweek; and (3) the amount of back wages owed by Premier. (Dkt. # 150 at 22.) Plaintiffs contend that, as miscjassi-fied employees, they are entitled to back wages in an amount of $181,711.00. (Dkt. # 150 at 20-22.) In response, Premier apparently does not dispute that Plaintiffs, if classified by the Court as employees pursuant to the FLSA, are entitled,to back wages.
The FLSA requires ■ employers to provide non-salaried workers “extra half-time pay at the employees’ regular rate for all hours worked in excess of 40” per workweek. 29 C.F.R. § 778.112. Meaning, if an employee makes $10/hr as his regular rate, for, every hour over forty that the employee shah make the normal $10, plus an additional half-time pay computed as follows: Regular Rate/2 = half time pay, for a total of $15/hr for áll hours over 40 hours per week. However, 29 C.F.R. § 778.309 provides that if an “employee works a regular' fixed number of hours in excess of the statutory maximum each work week, it is, of course, proper to pay him, in addition to his compensation for non-overtime hours, a fixed sum in any" such week for his
Notably, only hours that are spent on tasks that the employee is “employed to perform” are compensable. Integrity Staffing Solutions, Inc. v. Busk, — U.S. —,
For purposes of calculating the overtime payment/ the “regular rate” must be known such that a proper half time payment can be calculated. A regular rate shall “include all remuneration for employment' paid to, or on behalf of the employee.” 29 C.F.R. § 778.200. The statute carves out an exception for “payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure -of the employer to provide sufficient work, dr other similar cause; ... and other similar payments to an employee which are not made as compensation for his hours of employment[.]” 29 C.F.R. § 778.200(2).
In support of their claim for back wages, - Plaintiffs include as evidence a summary chart which purports to list the total amount of overtime wages owed to each of the five plaintiffs, for a grand total of $181,711. (Dkt. # 194-44.).In arriving at this calculation, Plaintiffs cite evidence of Premier’s own records, which indicate the compensation rates paid to each Plaintiff and the number of days a Plaintiff worked in each pay period. (Dkt. # 150 at 21.) In regard to the number of hours each Plaintiff worked each day, Plaintiffs assert that Premier failed to keep hourly records of this time. (Id. at 22.) In such case, Plaintiffs urge the Court to consider the deposition testimony of Premier’s employees, who state that DDs like Plaintiffs typically work “12 hours on, 12 hours off.” (Dkt. # 150-2 at 201-02.) According to Plaintiffs, using Premier’s 12-hour per day assumption, Plaintiffs calculated the total remuneration in each week and divided that by the number of hours worked in the week to find the regular rate of pay. (Dkt. # 150 at 22.) Thus, Plaintiffs applied half time for overtime calculation described in FLSA regulations to determine their claimed back wages total of $181,711.00. (Id.)
In addition to their summary chart, Plaintiffs have also provided as evidence, Plaintiffs’ pay stubs .and invoices for their work with Premier. (Dkts. ## 149-30-34.) Additionally, Plaintiffs’ attorney has declared that “[i]n order to arrive at the damage calculations, the total weekly compensation was divided by total hours worked each week, assuming each Plaintiff worked 12 hours per day. This yielded the regular rate. The regular hourly rate was then multiplied by .5 and then by the number of overtime hours worked in each week to determine backwages.” (Dkt. # 149-45 at 2-3.)
The Fifth Circuit has instructed that when an employer has failed to keep adequate records, “an employee has met h[is] requisite burden of proof ‘if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Harvill v. Westward Commc’ns, LLC,
On this record, without any competent controverting evidence on the matter of whether Plaintiffs were adequately compensated for their time worked or evidence negating Plaintiffs’ calculation as a matter of just and reasonable inference, the Court finds Plaintiffs’ evidence sufficient, even if only approximate, to grant summary judgment on this issue. Plaintiffs are entitled to back wages in the amount of $181,711.00. (See Dkt. # 149-44.)
D. Good Faith Defense
Plaintiffs also move for summary judgment on Premier’s good faith defense to the overtime violations. (Dkt. # 150 at 23.) Plaintiffs contend that Premier cannot meet its burden of demonstrating that it had both subjective good faith and an objectively reasonable basis for Plaintiffs’ compensation rate. (Id.) Premier responds that liquidated damages should be eliminated in this case because it acted in good faith and had reasonable grounds to believe it properly classified Plaintiffs. (Dkt. # 174 at 21.)
Under the FLSA, an employer who violates the overtime provisions is liable not only for the unpaid overtime compensation, but also for “an additional equal amount as liquidated damages.” '29 U.S.C. § 216(b). Liquidated damages in this context are compensatory, not punitive; they “constitute! ] compensation for the retention of a work[er]’s pay which might result in damages too obscure and difficult of proof for estimate other than by liquidated damages.” Brooklyn Sav. Bank v. O’Neil,
The Court can decline to award such damages, or reduce the amount awarded, if the - Court concludes the employer acted in “good faith” and had “reasonable grounds” to believe its actions complied with the FLSA. 29 U.S.C. § 260. An employer, however, “faces a substantial burden of demonstrating good faith and a reasonable belief that its actions did not violate the FLSA.” Singer v. City of Waco,
Good faith is a subjective component under which the employer must show that it “had an honest intention to ascertain what the Act requires and to act in accordance with it.” Dybach v. State of Fla. Dept. of Corrections,
Premier contends that it considered Plaintiffs to be independent contractors based on (1) its analysis of Plaintiffs’ relationship to the company, (2) Plaintiffs’ representation that they were in business for themselves, (3) a survey of similar oilfield companies to establish industry standards, and (4) advice of legal counsel. (Dkt. # 174 at 21.) Premier contends that while it did not seek the advice of legal counsel until after Plaintiffs’ counsel first sued Premier in 2015, it thereafter relied on counsel’s advice, and thus it is relevant to the Court’s consideration of good faith. (Id. at 21 n. 88.) ' '
Despite Premier’s assertion, the Court finds that it has not met its substantial burden of showing that it’s “failure to obey the statute was in good faith.” Nero v. Indus. Molding Corp.,
Furthermore, regarding Premier’s reliance on industry standard to prove good faith, Plaintiffs have produced evidence that Premier’s Chief Executive Officer previously worked for a company that was sued for misclassification of oilfield independent contractors, and who Plaintiffs contend, were eventually reclassified as employees. (Dkt. #150-2 at 117-18, 128, 129-30.) Accordingly, because the Court finds that Premier has failed to produce sufficient evidence that it took active, steps in investigating or complying with the FLSA’s requirements, the Court will award Plaintiffs’ request for liquidated damages in an amount of $181,711.00. (See Dkt. # 149-44.)
E. Conclusion
Based on the foregoing, the Court will GRANT Plaintiffs’ motion for summary judgment, and will award to Plaintiffs an amount of $363,422.00 in damages ($181,-711.00 in compensatory damages and $181,711.00 in liquidated damages) for Premier’s violation of the'FLSA.
IV. Premier’s Motion to Strike
Premier moves to strike the new evidence filed by Plaintiffs in their reply to their motion for summary judgment. (Dkt. # 187.) Premier argues that Plaintiffs inclusion of new evidence and a. new argument raised for the first time in its reply is impermissible. (Id.) The new evidence consists of a resume of a DD Coordinator, as well as an email dated July 10, 2014. (Dkt. # 179-1, Dkt. # 179-2.)
The Court will DENY AS MOOT Premier’s motion to strike. The Court did not rely on Plaintiffs’ new evidence or new argument raised for the first time in their reply brief. Plaintiffs rely on the new evidence, and make a new argument, in support of their contention that they were improperly classified as independent contractors. (See Dkt. # 179 at 8-9.) However, as stated above, the Court already determined that Plaintiffs were employees of Premier for FLSA purposes in considering Premier’s motion on this issue, and thus
CONCLUSION
Based on the foregoing, the Court (1) DENIES Premier’s Motion for Summary Judgment as to all Plaintiffs (Dkt. # 163); (2)GRANTS'Plaintiffs’ Motion-for Summary Judgment as to Employee Status, Liability/Backwages, and Premier’s" Good Faith Defense (Dkt. # 150); (3) OVERRULES IN PART, DENIES IN PART, and DENIES AS MOOT IN PART Parrish’s Objections to, and Motion to Strike, Premier’s Improper Affidavit Testimony (Dkt. # 170), and Parrish’s Objections to, and Motion to Strike, Premier’s Statement of Undisputed Facts (Dkt. # 172); and (5) DENIES AS MOOT Premier’s Motion to Strike Plaintiffs New Evidence on Reply (Dkt. #187). Plaintiffs are awarded an amount of $363,422.00 in damages ($181,-711.00 in compensatory damages and $181,711.00 in liquidated damages) for Premier’s violation of the FLSA. "
IT IS SO ORDERED.
Notes
. There are four other plaintiffs who have opted-in to this lawsuit.
. The parties apparently do not generally dispute the facts for this factor, but rather the appropriate comparison for “relative investment.”
. "EVO tools” are used by MWD engineers to survey and receive data "from down hole.” (Dkt. # 150-2 at 325.)
. Premier's only argument is that “[b]ecause summary judgment should be denied as to Plaintiffs’ .underlying claims, summary judgment as to damages should also-be denied.” (Dkt. # 174 at 21 n,89.),