On January 3, 2017, the U.S. District Court for the Western District of Texas conditionally certified a collective of workers paid per foot, per job, or with excluded bonuses in Goldsby v. Smith Laydown & Casing Services, LLC, No. MO:16-CV-00303-RAJ. In this Smith Laydown oilfield overtime lawsuit, the court acted on a joint stipulation, the group was defined by how workers were paid rather than by job title, and the bonuses at issue were non-discretionary ones left out of the regular rate. The Siegel Law Group represented the workers.
Senior United States District Judge Robert A. Junell signed the Order Granting Conditional Certification of Class (Doc. 24) in the Midland/Odessa Division. The parties had filed a joint stipulation on December 21, 2016, agreeing that the case should be conditionally certified as a collective action under the FLSA. After describing the two-stage Lusardi approach that most courts in the Fifth Circuit used at the time, the court held: “Accordingly, the Court finds that conditional certification of a collective action is appropriate.”
In close paraphrase, the collective included workers employed by the defendants from December 2013 to the date of the order who were paid by quantity of work performed, such as per foot or per job. It also included workers who received non-discretionary bonus payments not included in the regular rate of pay.
The defendants had ten (10) days to give plaintiff’s counsel the workers’ contact information. Phone numbers could be used only to verify addresses or e-mail addresses when a mailed notice came back undeliverable, and not to solicit. Workers had sixty (60) days from the date the defendants provided that information to mail their consent forms.
This was an agreed order, not a contested win; the court granted it after considering the pleadings and the law, and under the parties’ agreement. Because the order names no job titles, the definition turned on pay: it reached workers employed by the defendants from December 2013 on who were paid per foot, per job, or by another piece measure, or who received non-discretionary bonuses not included in the regular rate.
As general information, the FLSA requires overtime at one and one-half times a worker’s regular rate for hours over forty, and job-rate or piece-rate pay does not end that duty. The regular rate is figured by dividing total weekly earnings, including promised bonuses, by total hours worked (29 C.F.R. §§ 778.111, 778.112, 778.208). The order did not decide whether Smith Laydown paid its workers correctly.
Each worker had to opt in with a written consent, as in any FLSA collective action. Some federal appeals courts have since changed the two-step approach this order described — 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.
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.
Were you paid by the job or by the foot, or did your bonuses leave your overtime rate unchanged? 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 overtime case over piece-rate pay, Cline v. DC Power Tong, another case covering per-foot, per-job, and piece-rate pay and excluded bonuses, and Scheriger v. Gabe’s Casing, another Western District of Texas case over per-foot and per-job pay.
Under the 2017 order, the collective took in anyone the defendants employed at any time from December 2013 to the present, as the definition phrased it, who was paid by quantity of work, such as by the foot, by the job, or some other piece measure. Workers were also included if non-discretionary bonus payments were left out of their regular rate. That case had its own court-set window for joining.
No. In 2021, the Fifth Circuit decided Swales v. KLLM Transport Services, which replaced the old two-step method for federal courts across Texas, Louisiana, and Mississippi. Judges there now examine more closely, at the outset, whether workers are similarly situated before approving notice. The 2017 Goldsby order came before that change.
The order gave them sixty days, counted from when the defendants handed over the worker list, to put their consent forms in the mail. That deadline belonged to the 2017 case alone, so a worker with a similar claim today faces a different clock.
Courts supervise how notice reaches workers so it stays accurate and neutral. In Goldsby, plaintiff’s counsel could use phone numbers only to check addresses or emails after a mailed notice came back undeliverable. Counsel could not use the numbers to solicit. Other courts have handled phone and text contact differently.
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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