Burruss v. Wyoming Casing — Piece-Rate Crews Certified

Case at a glance

Court: U.S. District Court for the District of North Dakota
Case: Burruss v. Wyoming Casing Service, Inc., No. 1:16-cv-00080 (docket)
Workers: Casing workers paid by quantity of work, or who received non-discretionary bonuses (“Wet Pay”) left out of the regular rate
Pay plan: Per foot or per job; non-discretionary bonuses
Claims: Unpaid overtime under the Fair Labor Standards Act
Key ruling: Certified as a collective action (sworn: Siegel Decl. ¶ 13(b), filed in Weeks v. Matrix Absence Mgmt., No. 2:20-cv-00884 (D. Ariz. July 6, 2022))
Our role: Jack Siegel, counsel of record for the workers (Siegel Decl. ¶ 13(b), filed in Weeks v. Matrix Absence Mgmt., No. 2:20-cv-00884 (D. Ariz. July 6, 2022))

Wyoming Casing Oilfield Overtime Lawsuit: Casing Workers Paid by the Foot or by the Job Win Conditional Certification

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 served as lead counsel for the workers.

What the Court Ruled

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:

received pay based on the quantity of work, whether pay per foot, pay per job, or some other measure; or
received non-discretionary bonus payments, whether called “Wet Pay” or some other name, that were not included in the regular rate of pay.

Notice terms. Under the order:

Wyoming Casing had ten (10) business days to produce names, last known addresses, email addresses, and phone numbers. If it was late, the statute of limitations would be equitably tolled (the deadline clock paused) for each day after the tenth business day.
The court approved the workers’ proposed notice and consent form. Notice was to go by first class mail or overnight delivery and could also go by email, and the workers could send follow-up mailings at their own expense.
Workers had sixty (60) days from the first mailing to opt in. A form postmarked on the deadline was timely, and a form with no postmark was timely if received within five business days of the deadline.
Within five days of the mailing, Wyoming Casing had to post the notice and consent form at each branch, location, or shop that employed these workers, and then confirm the postings in writing.

Why This Matters

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 Legal Background

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).

What This Means for Workers

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.

Frequently Asked Questions

Do casing crew workers paid by the foot get overtime?

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.

Does a Wet Pay bonus count toward my overtime 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.

What happens if an employer does not respond to a motion for conditional certification?

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.

When does an oilfield worker’s consent form count as filed?

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.

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About Siegel Law Group

Siegel Law Group PLLC concentrates in unpaid overtime cases under the FLSA and state wage laws. The firm has filed more than 100 federal overtime cases, obtained 50+ class and collective certifications in 20 federal judicial districts across 15 states, and recovered more than $100 million for workers. It has never represented an employer in a wage case. Free consultation. Contingency fee: we advance case costs, and they are repaid from any recovery. No recovery, no fee and no costs. Phone: (214) 790-4454 | Email: [email protected]

These are results in other people's cases. Every case depends on its own facts and law. Prior results do not guarantee a similar outcome. This website contains attorney advertising.

Attorney responsible: Jack L. Siegel, Siegel Law Group PLLC, Dallas, Texas.