On December 15, 2016, the U.S. District Court for the Western District of Texas conditionally certified a collective action of workers paid by the amount of work, per diem, or bonus in Acuff v. Cosi Energy Services, LC, No. MO:16-CV-00312-RAJ-DC. In this Cosi Energy Services oilfield overtime lawsuit, the parties stipulated to certification, and the collective was made up of non-exempt workers paid by the amount of work they did, or paid per diem or non-discretionary bonus pay. Jack Siegel, with co-counsel, represented the workers.
The plaintiff moved for notice and conditional certification on December 7, 2016. Six days later, the parties filed a joint stipulation agreeing that the case should be conditionally certified as a collective action under the Fair Labor Standards Act (FLSA). Senior U.S. District Judge Robert A. Junell signed the order on December 15, 2016, granting the motion “as agreed to by the Parties.”
The collective the court conditionally certified in 2016 was defined this way: “All non-exempt workers who were employed by Cosi Energy Services, LC over the past three years who received pay based on the quantity of work performed (whether pay per foot, pay per job, or some other piece rate or piece work measure) or that were paid per diem, piece rate, or non-discretionary bonus pay.”
Notice terms. Under the order:
This was an agreed order: the parties stipulated to conditional certification, and the court entered it without a contested fight over whether the workers were similarly situated. The group was defined by how workers were paid, not by any particular job title, and conditional certification is an early step, not a finding that Cosi Energy Services broke the law.
The court applied, at the time of this 2016 order, the two-stage Lusardi approach used by most courts in the Fifth Circuit. That meant a “fairly lenient standard” at the notice stage and a closer look later if the employer moved to decertify.
Some federal appeals courts have since changed this approach — the Fifth Circuit in Swales v. KLLM Transport Services (2021) and the Sixth Circuit in Clark v. A&L Homecare & Training Center (2023). Swales now governs federal courts in Texas, Louisiana and Mississippi. Learn more about conditional certification of a collective action.
The workers’ claims were overtime claims. As general information, piece-rate workers are still owed overtime under the FLSA, and non-discretionary bonuses generally must be counted in the regular rate used to figure it.
This page describes a 2016 court order. The time to join that collective was set by the court in that case. If you have worked in a similar role, the Siegel Law Group can evaluate your own claims.
Were you paid by the foot, the job, or another piece rate while working over forty hours a week? A lawyer can review how you were paid. Contact the Siegel Law Group for a free consultation.
Related rulings: McClure v. Rocky Mountain Casing, another case involving piece-rate pay, Calvillo v. Bull Rogers, another case involving piece-rate pay and bonuses, and Goldsby v. Smith Laydown, another Western District of Texas case over piece-rate pay and bonuses left out of the regular rate.
Yes, as a general rule. Being paid per foot, per job, or per piece does not cancel overtime under the Fair Labor Standards Act. For a non-exempt piece-rate worker, the regular rate is generally the week’s total earnings, including piece pay and any other pay that must be counted, divided by total hours worked. For hours past forty, the worker is generally owed one-half of that rate in addition to the piece pay already earned.
In Acuff v. Cosi Energy Services, they were. The collective conditionally certified in 2016, by agreement of the parties, took in non-exempt workers paid by the quantity of work performed and those paid per diem, piece rate, or non-discretionary bonus pay. Membership turned on how people were paid, not on a job title. In other cases, whether such workers fit in one group depends on the facts and the court.
It depends on what the per diem really paid for. As a general matter, a reasonable payment covering travel or living costs while working away from home can be left out of the regular rate. A per diem that rises with the hours someone works, or that goes well beyond real costs, may have to be counted in it.
A piece-rate worker generally gets two years from each underpaid payday to bring an FLSA claim, stretched to three years for a willful violation (29 U.S.C. § 255(a)). Older weeks drop off as time passes. Someone who opts in to a collective action is generally treated as having filed only once that person’s signed consent, in writing, is filed with the court (29 U.S.C. § 256(b)). See our guide to deadlines for overtime claims.
The Siegel Law Group is a national overtime and wage law firm devoted entirely to representing workers denied overtime pay. Where many firms include wage cases as a small part of a broader employment practice, the Siegel Law Group has built its entire practice around overtime litigation — and the results reflect that commitment: $100M+ recovered for workers, 50+ class and collective action certifications, and 100+ federal lawsuits filed in 27+ federal courts nationwide. Founding attorney Jack Siegel is a Bloomberg BNA contributing author on wage and hour law.
Free consultation. Contingency fee — no fee unless we win.
Phone: (214) 790-4454 | Email: [email protected]
This website contains attorney advertising. Past results do not guarantee future outcomes.
Search by company or industry to see overtime case activity.
Case information shown is from public court filings and approved settlements. Prior results do not guarantee a similar outcome.
