On September 21, 2016, a federal court in the Northern District of Texas conditionally certified hourly oilfield workers who received non-discretionary bonus or “non-revenue” pay in Fulton v. Bayou Well Services LLC, No. 3:16-CV-00474-N. In this Bayou Well Services overtime lawsuit, the court also approved notice and denied the company’s motion to dismiss. The ruling is published at 208 F. Supp. 3d 798. Jack Siegel, with co-counsel, represented the workers.
United States District Judge David C. Godbey signed the order (Doc. 45). It granted the workers’ motion for notice and conditional certification and denied Bayou Well Services’ motion to dismiss.
According to the order, Bayou Well Services (BWS) provides well site support services for oil and gas operations. The workers were described as hourly-paid, nonexempt employees performing oilfield labor services. They alleged that BWS left non-discretionary bonus and “non-revenue pay” out of the regular rate used to calculate overtime, resulting in underpayment for hours over forty.
The court applied the two-step Lusardi approach, which the order says the Northern District of Texas followed. At step one, it asked whether some identifiable facts or legal nexus bound the claims together. It answered plainly: “The Court finds such a nexus here.” The court also found the request “reasonable in scope and conducive to judicial efficiency,” because it reached only hourly workers who received the pay at issue.
The collective the court conditionally certified included the defendant’s current and former hourly paid employees who received non-discretionary bonus or “non-revenue” pay from June 16, 2013 to the date of the order. It excluded equipment operators who had filed consents to join another FLSA case against BWS in the Southern District of Texas, Bittner v. Bayou Well Services.
Notice terms. Under the order:
BWS argued that the case overlapped with Bittner, where a court had already conditionally certified a group of hourly equipment operators. It asked the court to dismiss the claims of equipment operators under the first-to-file rule. The court refused: “But the issues raised here do not substantially overlap with the Bittner litigation.”
The court gave two reasons: the collective definition expressly excluded people taking part in Bittner, and this case included a claim that BWS failed to include non-revenue pay in the regular rate, a claim not present in Bittner. The court also declined to dismiss any of the three named plaintiffs.
For workers, that meant a second case against the same company could go forward on a different pay issue, and the earlier case did not block notice to hourly workers who were not part of it.
The tolling order mattered too. As general information, an FLSA collective member’s claim keeps losing older weeks until that worker’s consent form is filed. Here, the order stopped that loss for opt-in workers by tolling the limitations period through the court filing date for their consents.
As general information, FLSA overtime is owed at one and one-half times a worker’s regular rate, not just the base hourly wage. The regular rate generally includes all pay for work, unless a payment fits a specific exclusion in 29 U.S.C. § 207(e). Non-discretionary bonuses usually must be counted (29 C.F.R. § 778.208). When an employer leaves them out, the overtime premium comes out too low.
The order did not decide whether BWS miscalculated anyone’s overtime. Conditional certification is a preliminary step that lets the court approve notice. The court said it would reserve the more searching look at whether workers were similarly situated for the second step, after discovery.
As in any FLSA collective action, each worker had to opt in with a written consent, and at the time of this 2016 order the court applied the lenient Lusardi first step at the notice stage. 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 how certification works today.
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 an hourly oilfield worker who received safety bonuses, other non-discretionary bonuses, or “non-revenue” pay? Did your overtime rate seem to match only your base hourly wage? A lawyer can review how you were paid. Contact the Siegel Law Group for a free consultation.
Related rulings: Calvillo v. Bull Rogers, another oilfield overtime case involving bonuses and the regular rate, Moreno v. Silvertip, another case over Additional Pay left out of the regular rate, and Goldsby v. Smith Laydown, another case over bonuses left out of the regular rate.
The Fulton order uses the term but does not define it. The workers claimed that Bayou Well Services left this pay out of the rate used for overtime. As a general rule, the FLSA counts nearly all pay for work in the regular rate, with narrow listed exceptions. Whether a given payment counts depends on what it was actually paid for.
Sometimes. In Fulton, an earlier case against the same employer already involved a conditionally certified group of hourly equipment operators. The court let the new case go ahead because it left out anyone who had joined the earlier case and raised a separate pay claim. Whether a worker could join depends on the group definitions in each case.
It is a doctrine that lets a federal court step aside when an earlier-filed case substantially overlaps with a later one. Employers sometimes raise it when two wage cases target the same company. In Fulton, the court rejected that argument because the new collective left out anyone taking part in the earlier case, and the new case added a non-revenue pay claim the first case did not include.
Under 29 U.S.C. § 255(a), an hourly oilfield worker usually has two years to recover each short paycheck, and three if the employer acted willfully. Section 256(b) generally treats a collective-action claim as filed only on the date that worker’s signed consent form gets filed in the case. Some courts, like the Fulton court, toll that clock during notice. Read our guide to wage claim filing deadlines and act early.
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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