On March 29, 2017, the U.S. District Court for the District of North Dakota conditionally certified a collective of workers paid by quantity or with bonuses outside the regular rate in Burruss v. Wyoming Casing Service, Inc., No. 1:16-cv-080. In this Wyoming Casing oilfield overtime lawsuit, the court also approved notice by mail and email and ordered the notice posted at the company’s shops. Jack Siegel, with co-counsel, represented the workers.
Chief Judge Daniel L. Hovland signed the Order Granting Plaintiff’s Motion for Conditional Certification on March 29, 2017. The workers had filed their motion for notice and conditional certification on July 1, 2016, and Wyoming Casing did not respond to it. Under the court’s local rule, a failure to respond may be deemed an admission that a motion is well taken.
The court still explained its ruling. It applied a two-step approach and said the case was at the first step, because discovery was not complete. At that step, it asked only whether the workers showed a colorable basis that the group were victims of a single decision, policy, or plan, and it found that they did.
The court found a colorable basis that “the workers are similarly situated because they received pay based on the quantity of work performed”, and that the pay policy inflicted a common injury on the group. It therefore concluded that “the proposed class has met the requirements of the FLSA at this early stage.”
Who was in the group. In close paraphrase, the order covered all workers employed by Wyoming Casing from June 2013 to the date of the order who either:
Notice terms. Under the order:
The court grouped the workers by how they were paid, not by job title. The plaintiffs said casing employees had a primary duty of oil field casing work and regularly worked over 40 hours per week. They described two policies: an Overtime Miscalculation Policy, under which overtime was not paid at the legally required rate, and an Uncounted Hours Policy, under which overtime was not paid for all overtime hours worked.
As a general rule, pay per foot, pay per job, and non-discretionary bonuses all count when an employer figures the overtime rate. If those amounts are left out, each overtime hour can be underpaid. By certifying a group defined by pay method, the court let everyone paid that way get notice, whatever their exact crew role.
Posting at the shops gave workers another way to learn about the case. The order also said that, for the statute of limitations, the date counsel received a consent form would count as the date it was filed with the court.
Conditional certification is a preliminary step, not a finding that Wyoming Casing violated the FLSA. As the order explained, after discovery an employer may ask the court to decertify the group under a closer look at the facts.
The Fair Labor Standards Act requires time and a half for hours over 40 in a workweek. That rate is figured from the worker’s regular rate, not just a base wage. As general information, Department of Labor rules say a piece-rate worker’s regular rate is total piece earnings for the week divided by total hours worked (29 C.F.R. § 778.111). Non-discretionary bonuses generally must be added in as well (29 C.F.R. § 778.208).
The FLSA also requires overtime pay for every overtime hour worked, including hours an employer failed to record or count. Learn more about off-the-clock and unrecorded work time.
In 2017, this court applied the two-step method it described in its order: a lenient first step for conditional certification, and a second, closer review if the employer moved to decertify after discovery. 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).
This page describes a 2017 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.
Have you worked on a casing crew, been paid by the foot, by the job, or with a bonus like “Wet Pay,” and often worked more than 40 hours a week? If your overtime was figured from a base wage alone, or some hours were never counted, 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 District of North Dakota case for casing crews, Calvillo v. Bull Rogers, another casing crew overtime case, and Cline v. DC Power Tong, another District of North Dakota case over per-foot pay and bonuses left out of the regular rate.
Generally, yes, because pay per foot is a type of piece-rate pay, and piece-rate workers keep their overtime rights unless an exemption applies. Their regular rate comes from dividing all of the week’s piece earnings by all hours worked, and each hour beyond forty adds a premium equal to half of that rate.
It usually should. Department of Labor rules say most non-discretionary bonuses, such as bonuses tied to set conditions or production, belong in the regular rate. In Burruss v. Wyoming Casing, the group included workers whose bonuses, whether called “Wet Pay” or some other name, were left out of that rate, though the court made no final ruling on whether that was unlawful.
The court can treat the employer’s silence as a point against it. In this North Dakota case, the local rule let the court deem the lack of a response an admission that the motion was well taken. Even so, the judge reviewed the record and explained why the casing workers met the early-stage standard before approving notice under court-set terms.
The answer depends on the order entered in each case. In this Wyoming Casing case, the court said the date the workers’ lawyers received a consent form would count as the filing date for statute-of-limitations purposes. That matters because, under 29 U.S.C. § 255(a), a casing worker generally has two years to recover pay for each short paycheck, and three when the employer acted willfully. Learn more about 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.
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