MEMORANDUM AND ORDER
Bеfore the Court is Plaintiffs’ Motion to Conditionally Certify a Collective Action and to Issue Notice (“Motion”). (Doc. No. 10.) After considering the Motion, all responses and replies thereto, and the applicable law, the Court concludes that the Motion should be GRANTED in part and DENIED in part.
I. FACTS
In January 2012, Bobby Walker (“Walker”), Paul Frazier (“Frazier”), David Fred Mehaffey II (“Mehaffey”), Juan Garcia (“Garcia”), Broderick McCloud (“McCloud”), Michael Weathersby (“Weathersby”), Edgar Sanchez (“Sanchez”), and Javier Pineda (“Pineda”) (collectively, “Plaintiffs”) filed this lawsuit against HongHua America, LLC (“HongHua” or “Defendant”), alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). (Doc. No. 1, Pl.’s Compl. ¶ 1.) Defendant, an American subsidiary of a Chinese company, designs and manufactures land rigs and offshore drilling modules. (Id. ¶ 18.) Walker, Frazier, Mehaffey, and Garcia were employed by Defendant as Crane Operators. (Id. ¶¶ 6-7.) McCloud, Weathersby, Sanchez, and Pineda worked for Defendant as Roughneck/Riggers. (Id. ¶¶ 10-13.)
Plaintiffs claim that Defendant systematically labeled many of its employees “independent contractors” so that it could avoid paying them overtime as required by the FLSA, 29 U.S.C. § 207(a)(1). (Id. ¶ 1.) Although there are exemptions to § 207(a)(l)’s requirements, Plaintiffs insist that none of these exemptions аpplied to them. (Id. ¶ 47.) Consistent with its policy, Defendant allegedly misclassified Plaintiffs as independent contractors and paid them “straight-time overtime” when they worked over 40 hours in a workweek, rather than the time and one-half specified in the FLSA. (Id. ¶ 2.) According to Plaintiffs, Defendant fired Walker and Frazier when they complained about not being paid time and one-half. (Id. ¶ 3.) Plaintiffs aver that Defendant’s violations of the FLSA were blatant and willful. (Id. ¶ 41.) Consequently, Plaintiffs seek to recover unpaid overtime wages due to them and their similarly situated former coworkers. (Id. ¶ 5.) Additionally, Walker and Frazier bring suit for retaliatory termination in viоlation of the FLSA’s anti-retaliation provision, 29 U.S.C. § 215(a)(3).
Plaintiffs filed this Motion, seeking to conditionally certify their proposed class. (Doc. No. 10.) Defendant filed a Response (Doc. No. 20) and a Sur-Reply (Doc. No. 24). Plaintiffs filed a Reply (Doc. No. 22).
II. LAW
Under § 207(a) of the FLSA, covered employers are required to compensate nonexempt employees at ovеrtime rates for time worked in excess of statutorily-defined maximum hours. Section 216(b) provides a right of action for employees against employers who violate § 207. Similarly situated employees can “opt-in” to a lawsuit under § 207(a) to benefit from a judgment. Holbrook v. Smith & Hawken, Ltd.,
Under the first step of the Lusardi analysis, courts decide whether to issue notice to potential class members. Aguirre,
Once a court conditionally certifies a class, the action proceeds as a collective action during discovery. Aguirre,
III. ANALYSIS
Utilizing the Lusardi analysis, the Court concludes that conditional certification is warranted. However, the Court finds that it is appropriate for the case to proceed with two classes: one class consisting of Crane Operators, and a second class consisting of Roughneck/Riggers. Also, although Plaintiffs may issue notice to workers beginning three years prior to the date of this Memorandum and Order, the end date must be set as January 12, 2012, when Defendants refashioned their overtime policy by hiring individuals from a third-party staffing company.
A. Parties’ Briefing
In the Motion, Plaintiffs request that the Court conditionally certify a collective action and authorize Plaintiffs to issue “opt-in” notices to similarly situated Crane Operators and Roughneck/Riggers who have performed work for Defendant over the past three years without receiving overtime pay. (Doc. No. 10, Mot. Certify at 2.) Plaintiffs contend that conditional certification is proper because the Plaintiffs and their fellow Crane Operators and Roughneck/Riggers:
• All worked at the same location in Houston, Texas;
• All worked in one of two job categories, either as Crane Operators or Roughneck/Riggers, performing the same essential jobs under similar relevant conditions;
• All worked a lot of overtime;
• All were misclassified as “independent contractors” and thus were not paid overtime compensation that they were entitled to receive under the FLSA;
(Id. at 3.) Plaintiffs observe that other similarly situated individuals exist because, as explained in multiplе affidavits, there are probably more than twenty other Crane Operators and two hundred Rough
Defendant disputes that conditional certification is warranted here. According to Defendant, the core issue in this case— contractor versus employee status — is clearly not a question that lends itself to determination as a collective action. (Resp. to Mot. Certify at 2.) Defendant urges that the Plaintiffs were independent contractors pursuant to the еconomic realities test. (Id. at 16.) Additionally, Defendant argues, the Court would have to undergo an independent analysis as to each employee, taking into account their diverse professional histories, experiences, services, skill, initiative, investments in tools and equipment, time periods worked, and sources of income. (Id. at 16-20.) In other words, Defendant contends, as these unique patterns would have to be investigated for each worker, a collective action would be ineffective and unwieldy. (Id. at 20.) If the Court chooses to conditionally certify, however, Defendant requests that the Court narrow the personal information about workers that could be divulged to Plaintiffs’ counsel. (Id. at 21.) Defendant also asserts that the Court should treat Crane Operators and Roughneck/Riggers separately. (Id. at 23.) Finally, Defendant requests various changes to Plaintiffs’ proposed notice. (Id. at 23-25.)
In their Reply, Plaintiffs claim that Defendant itself treated the putative Plaintiffs as similarly situated — by making them all employees of Orin Staffing in January 2012, so that they now receive overtime pay under the FLSA. (Reply to Mot. Certify at 4.) Plaintiffs urge that Defendant’s merits-based arguments are inappropriate at the conditional сertification stage of an FLSA action. (Id. at 5.) Additionally, Plaintiffs believe that judicial efficiency in fact favors conditional certification. (Id. at 7.) Defendant filed a SurReply in which it insists that Plaintiffs misapply the law concerning conditional certification. (Sur-Reply to Mot. Certify at 3.) Defendant points out that courts have refused to conditionally certify FLSA suits if the individualized inquiries required would eliminate the “economies of scale envisioned by the FLSA collective action procedure” — the exact scenario, Defendant asserts, that is before this Court. (Id. at 4.) According to Defendant, its arguments are nоt merit-based; rather, as “the question of whether or not to conditionally certify a class depends upon whether the named and putative plaintiffs are contractors or employees,” Defendant’s arguments should be considered at this stage of the proceeding. (Id. at 9.) Finally, Defendant emphasizes that the proposed notice is flawed because it is designed to create the perception that (a) the Court has endorsed the merits of the suit, (b) there is money to be had by joining, (c) the recipient will not be able to recover if they do not participate, and (d) all roads to the money go through the office of Plaintiffs’ attorney. (Id. at 10.)
B. Reasonable Basis for Crediting Assertions that Aggrieved Individuals Exist
Plaintiffs have met their burden of showing that there is a reasonable basis
C. Aggrieved Individuals Are Similarly Situated to Plaintiffs in Relevant Respects Given the Claims and Defenses Asserted
Plaintiffs seek to conditionally certify a class consisting of employees from two different positions: that of Crane Operator, and that of Roughneck/Rigger. Plaintiffs present evidence that Crane Operators were responsible for operating cranes. (Frazier Aff. ¶ 2.) Plaintiffs also show that Roughneck/Riggers “all did the same thing at the same location: heavy labor assembling and disassembling rigs for HongHua at its 35,000 square foot warehouse fabrication show and 20-acre rig-up facility located at 8300 McHard Road, Houston, Texas 77053.” (McCloud Aff. ¶ 3; Pineda Aff. ¶ 3.) According to Plaintiffs, the Roughneck/Rigger job “is not skilled work — it is just straight-up hard labor.” (McCloud Aff. ¶ 3.) Defendant points out that, in contrast, the Crane Operators have specialized training and experience, and are certified to operate cranes. (Ex. A to Mot. Certify, Estela V. Moscot Aff. ¶ 13.)
“For the class representative to be considered similarly situated to the potential opt in class members, the class representative must be similarly situated in terms of job requirements and similarly situated in terms of payment provisions.” Ryan,
Nor is this a case where the division between the two positions is porous, Jesiek,
The Court does determine, however, that Crane Operators and Roughneck/Riggers are similarly situated within their respective positions. Crane Operators worked at the same facility, operated cranes, and were subject to a policy of not being paid overtime. (Frazier Aff. ¶¶ 2, 3, 5.) Roughneck/Riggers performed heavy labor and disassembled drill rigs for Defendant at the same facility, and were subject to a policy of not being paid overtime. (McCloud Aff. ¶¶ 2, 3, 5; Pineda Aff. ¶¶2, 3, 5.) Defendant asserts that these groups are not homogenous. (Moscot Aff. ¶¶ 13-14.) Discovery may show that Crane Operators and Roughneck/Riggers are not similarly situated within their respective groups. Nonetheless, at this preliminary stage, Plaintiffs can survive the similarly situated analysis as to each position.
The Court disagrees with Defendant’s conclusion that FLSA cases concerning employеe versus independent contractor status are inherently ill-suited to collective action treatment. Contrary to Defendant’s assertion, many courts have granted conditional certification in FLSA cases involving disputes over whether workers were misclassifíed as independent contractors. See Ruffin v. Entertainment of the Eastern Panhandle, No. 3:11-CV-19,
Nonetheless, courts are split as to whether the economic realities test should be utilized when determining whether to conditionally certify an FLSA action concerning an allegedly wrongful independent contractor designation. To determine whether a worker is an employee or an independent contractor, “courts in this Circuit ‘generally use as a guide five, nonexсlusive factors: (a) the permanency of the relationship; (b) the degree of control exercised by the alleged employer; (c) the skill and initiative required to perform the job; (d) the extent of the relative investments of the worker and the alleged employer; and (e) the degree to which the worker’s opportunity for profit and loss is determined by the alleged employer.’ ” Andel v. Patterson-UTI Drilling Co., LLC,
The Court believes that the economic factors test is likely not appropriate for determination at the first stage of FLSA class certification. Even if the test applies, however, Plaintiffs have presented sufficient evidence that they are similarly situated under the five factors within the respective positions of Crane Operator and Roughneck/Rigger. Specifically, Plaintiffs have put forth evidence, albeit minimal, that they are: similarly situated to other members of each position in terms of their relationship to Defendant, the skill required to perform their positions, the extent of their investments аnd Defendant’s investments, and the degree to which their opportunity for profit and loss is determined by the alleged employer.
D. Those Individuals Want to Opt In to the Lawsuit
Many courts have determined that plaintiffs do not need to present evidence that potential opt-in plaintiffs desire to opt-in. Jesiek,
E. Conditional Class Certification
This Court “has the power to modify an FLSA collective action definition on its own.” Dreyer,
The Court finds, however, that Defendant’s policy changed on January 12, 2012. The “policy change demonstrates that those employed by Defendant [after January 12, 2012] are not ‘similarly situated’ to
The Court further agrees with Defendant that Plaintiffs’ request for data about potential class members is too broad. The Court requires Defendant to produce, in usable electronic format, within seven days of the date of the Order: the names, last known personal and work addresses, personal and work email addresses, and dates of work of all persons who performed work for Defendant as Crane Operators or Roughneck/Riggers at any time between May 7, 2009 and January 12, 2012. The information should be verified as complete and accurate by one of Defendant’s corporate representatives. Finally, the Court orders the parties to confer about the content of the notice, and to provide the Court with a proposed notice within 14 days of the date of this Order. Additionally, the parties should confer about the proper method for distribution and return of the notices. If the parties cannot agree upon either of these issues, they must each file their proposed notice and proposed method of distribution and return.
IV. CONCLUSION
For the reasons discussed above, Plaintiffs Motion is GRANTED in part and DENIED in part. The Court conditionally certifies the following two classes:
• All current and former Crane Operators who were classified as independent contractors, were not paid overtime pay at the rate of one and one-half times their regular hourly rate, and were employed by Defendant at any time between May 7, 2009 and January 12, 2012.
• All current and former Roughneck/Riggers who were classified as independent contractors, were not paid overtime pay at the rate of one and one-half times their regular hourly rate, and were employed by Defendant at any time between May 7, 2009 and January 12, 2012.
IT IS SO ORDERED.
Notes
. Section 215(a)(3), 29 U.S.C. provides that “it shall be unlawful for any person ... to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding ...”
. Section 216(b), 29 U.S.C. explains that an employer who violates § 207 of the FLSA is liable to employees, who may bring the action on behalf of themselves and those similarly situated:
An employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages .... An action to recover the liability prescribed ... may be maintained against any employer ... in any federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless hegives his consent in writing to become such a party and such consent is filed in the court in which such action is brought....
. In fact, Crane Operators appear to have had a specialty in their field, which merely adds weight to the fact that they were not similarly situated to Roughneck/Riggers. Indeed, any possible category that would encompass both Crane Operators and Roughneck/Riggers would be too generic. Villarreal v. St. Luke's Episcopal Hospital,