The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JAVIER GARZA, on behalf of himself, )
and on behalf of all others similarly )
situated, )
) Case No. CIV-20-336-D
Plaintiff, )
v. )
)
FUSION INDUSTRIES, LLC, )
)
Defendant. )
)
ORDER
Before the Court is Plaintiff’s Motion for Conditional Certification and to Facilitate
Notice Under 29 U.S.C. § 216(b) [Doc. No. 52]. Defendant filed a response in opposition
[Doc. No. 54], to which Plaintiff replied [Doc. No. 55]. The matter is fully briefed and at
issue.
BACKGROUND
Plaintiff brings this collective action on behalf of himself and a putative class to
recover unpaid overtime wages and other damages under the Fair Labor Standards Act, 29
U.S.C. §§ 201 et seq. (FLSA) and the New Mexico Minimum Wage Act, N.M. Stat. Ann.
§§ 50-4-1 et seq. (NMMWA). Defendant Fusion Industries, LLC is a company that
provides services to the oil and gas industry. As part of its business, Defendant hires
welders to work on various oil and gas equipment, including oil rigs and natural gas
compressors. Defendant classifies some of these welders as independent contractors, and
Defendant pays those independent contractors on an hourly basis. Plaintiff alleges
Defendant misclassified him and other welders as independent contractors when they
should have been classified as employees and, thus, paid overtime wages. Defendant denies
any wrongdoing.
Based on the allegations of the Amended Complaint, and his Motion and supporting
declarations, Plaintiff seeks certification of a FLSA collective action that consists of: “all
current and former welders who were paid on an hourly rate basis and were classified as
independent contractors by Defendant at any time during the three-year period before the
filing of this Complaint.” [Doc. No. 32] Amend. Compl., ¶ 8.
STANDARD OF DECISION
Whether an employee may maintain a FLSA collective action depends on whether
he is “similarly situated” to other members of the putative class. See 29 U.S.C. § 216(b).
Although § 216(b) does not define “similarly situated,” the Tenth Circuit has endorsed the
ad hoc method of determination. Thiessen v. General Electric Capital Corp., 267 F.3d
1095, 1105 (10th Cir. 2001). Under this approach, the Court engages in a two-step process.
First, it makes an initial “notice stage” determination on whether a plaintiff is “similarly
situated,” which requires nothing more than substantial allegations that the putative class
members were together the victims of a single decision, policy, or plan. Thiessen, 267 F.3d
at 1102.
“By this determination, the court decides whether a collective action should be
certified for purposes of sending notice of the action to potential class members.” Renfro
v. Spartan Computer Services, Inc., 243 F.R.D. 431, 432 (D. Kan. 2007) (citation omitted).
“Plaintiffs need only show their positions are similar, not identical, to the positions held by
the rest of the collective class members.” Garcia v. Tyson Foods, Inc., 890 F. Supp. 2d
1273, 1279 (D. Kan. 2012) (citing Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir.
1996) (further citations omitted)). This standard is a very lenient one and typically results
in certification for the purpose of notifying potential plaintiffs. Renfro, 243 F.R.D. at 432;
Hart v. Sandridge Energy, Inc., No. CIV-14-178-R, 2014 WL 2983358, at *2 (W.D. Okla.
July 1, 2014). Ordinarily, the Court makes this determination fairly early in the litigation,
before the parties complete discovery. Brown v. Money Tree Mortgage, Inc., 222 F.R.D.
676, 679 (D. Kan. 2004). In making this determination, the Court does not reach the merits
of the plaintiff's claims. Gieseke v. First Horizon Home Loan Corp., 408 F. Supp. 2d 1164,
1166 (D. Kan. 2006) (citing Hoffman v. Sbarro, Inc., 982 F.Supp. 249, 262 (S.D.N.Y.
1997)).
Under the second step, usually initiated at the close of discovery, the Court utilizes
a stricter standard of “similarly situated” which requires evaluation of several factors,
including: (1) disparate factual and employment settings of individual plaintiffs; (2) the
various defenses available to defendants which appear to be individual to each plaintiff;
and (3) fairness and procedural considerations. Thiessen, 267 F.3d at 1102–03.
DISCUSSION
“Generally, where putative class members are employed in similar positions, the
allegation that defendants engaged in a pattern or practice of not paying overtime is
sufficient to allege that plaintiffs were together the victims of a single decision, policy or
plan.” Renfro, 243 F.R.D. at 433–34 (citation omitted). In support of his allegations,
Plaintiff provides declarations from himself and Ronnie Hernandez. The affidavits state:
• The workers completed welding work for Defendant;
• Defendant classified welders as independent contractors, rather than
employees;
• The welding work required long hours, including over 40 hours in a week;
• The welders were paid by Defendant on an hourly basis but were not paid
overtime;
• Defendant instructed the welders when and how to perform their work;
• Due to the time commitment required for the projects the welders worked on
for Defendant, the welders could not realistically work for another company
during their work for Defendant;
• Other welders classified by Defendant as independent contractors were
similar in their respective duties and were paid on an hourly basis without
overtime;
• Other welders classified by Defendant as independent contractors are likely
interested in joining this lawsuit.
[Doc. Nos. 52-3 and 52-4]. Given the allegations of the Complaint, Motion, and supporting
declarations, which suggest Plaintiff and the putative class maintained similar positions
and did not receive overtime pay, Plaintiff has satisfied the low threshold required to
demonstrate at the notice stage that all putative class members are similarly situated for
purposes of conditional collective action certification under Section 216(b) of the FLSA.
See Renfro, 243 F.R.D. at 434.
Defendant argues certification is inappropriate, claiming no other individuals are
able to assert timely claims. Defendant also argues Plaintiff’s allegations fail to meet the
standard necessary for conditional certification. Both arguments rely on the same
contention: Defendant’s assertion that the putative class should be limited to welders that
worked at the same location as Plaintiff. Defendant argues the project for which Plaintiff
did welding was completed more than three years ago, meaning that any claim to recover
unpaid overtime wages from that project that has not yet been asserted is now barred by
the three-year statute of limitations. Defendant also contends Plaintiff has failed to show a
company policy of classifying some welders as independent contractors existed outside of
the specific project on which Plaintiff worked.
There is no requirement that Plaintiff’s position be identical to the positions held by
the rest of the collective class members; all that is required is a showing that Plaintiff’s
position is similar. Garcia, 890 F. Supp. 2d at 1279. “[G]eographic commonality is not
necessary to satisfy the FLSA collective action's ‘similarly situated’ requirement, so long
as the employees were impacted by a common policy.” McCloud v. McClinton Energy
Grp., L.L.C. 2015 WL 737024, *8 (W.D. Tex. Feb. 20, 2015)(quotation marks omitted
quoting Vargas v. Richardson Trident Co., 2010 WL 730155, at *8 (S.D. Tex. Feb. 22,
2010)). Thus, “‘if there is reasonable basis to conclude that the same policy applies to
multiple locations of a single company, certification is appropriate.’” Id. (brackets
omitted)(quoting Rueda v. Tecon Servs., 2011 WL 2566072, at *4 (S.D. Tex. 2011)).
Plaintiff asserts in his declaration that he worked on four separate projects for Fusion
as an independent contractor welder, and Ronnie Hernandez claims he also worked for
Defendant as an independent contractor welder. Both state they knew other welders were
classified by Defendant as independent contractors. In its Answer, Defendant does not
dispute its policy of “engag[ing] qualified independent contractors as the need arises to
perform skilled welding services on a short-term basis, usually for individual projects.”
[Doc No. 34], Answer, ¶ 13. The Court, thus, finds a reasonable basis to conclude a
singular policy existed with regard to classifying welders, like Plaintiff and Mr. Hernandez,
as independent contractors instead of as employees, effectively denying them overtime
wages.1 Accordingly, the Court finds the conditional certification of all current and former
welders who were paid on an hourly rate basis and were classified as independent
contractors by Defendant should not be limited by location.
CONCLUSION
The Court finds as follows:
1. Plaintiff’s Motion for Conditional Certification and to Facilitate Notice Under 29
U.S.C. § 216(b) [Doc. No. 52] is GRANTED as set forth herein. This action is
conditionally certified as a collective action under 29 U.S.C. § 216(b) to include:
All current and former welders who were paid on an hourly rate basis and were
classified as independent contractors by Defendant at any time during the three-
year period before the filing of [the] Complaint
2. Noting that Defendant failed to assert any specific objection to Plaintiff’s Proposed
Notice Plan, the Court directs the parties to confer and submit an agreed Notice of
Lawsuit within 14 days of this Order. If an agreement cannot be reached, Plaintiff shall
re-file by that same date his motion seeking approval of his proposed forms and
informing the Court of the nature of the parties' disagreement.
1 Whether those welders were, in fact, misclassified is a dispute beyond the scope of the motion
for conditional certification. At this stage, the Court’s role is not to evaluate the merits of Plaintiff’s
claim. See, e.g., Vondriska v. Premier Mortg. Funding, Inc., 564 F. Supp. 2d 1330, 1335–36 (M.D.
Fla. 2007) (“[V]ariations in specific duties, job locations, working hours, or the availability of
various defenses are examples of factual issues that are not considered at [the notice] stage. …
Defendant’s arguments appear to be relevant to the application of various exemptions from the
FLSA, which is more properly addressed after discovery is completed.”) (internal citations
omitted, paraphrasing in original).
IT IS SO ORDERED this 11" day of April, 2022.
Q.
TIMOTHY D. DeGIUSTI
Chief United States District Judge