On April 1, 2020, the U.S. District Court for the Western District of Texas conditionally certified a collective of non-exempt workers with Additional Pay allegedly excluded from the regular rate in Moreno v. Silvertip Completion Services Operating, LLC, No. 7:19-cv-00240. In this oilfield bonus overtime lawsuit, the court granted the workers’ motion only in part, because the notice terms were still to be worked out. The Siegel Law Group, with co-counsel, represented the workers.
United States Magistrate Judge Ronald C. Griffin of the Western District of Texas, Midland/Odessa Division, signed the order on April 1, 2020. The order describes Silvertip as an oil-and-gas service company that provides wireline and pumping services to its customers in the Permian Basin. The named plaintiff sued under the Fair Labor Standards Act (FLSA) for unpaid overtime for his work as a wireline operator.
The court conditionally certified the collective action exactly as proposed: “All workers employed by Defendant in the United States in the last three years who were paid on a non-exempt basis and received Additional Pay that Defendant excluded from the regular rate to calculate overtime.”
Silvertip asked the court to limit the collective to two years because it did not begin operating until 2018. The court kept the three-year definition. It found the change would have no practical effect, because no one should be seeking to join for work before the company existed.
The court granted the motion only in part because it did not approve a notice yet. The plaintiff had asked for an order making Silvertip turn over contact information for possible members, and for notice by mail, email, and text message. The court did not rule on those requests. Instead, it ordered the parties to confer on the notice and to file their proposed method of notice within twenty-one days, with Silvertip filing any remaining objections if they could not agree.
The court rejected each of Silvertip’s arguments against certification:
A key point for workers is that the collective was not limited to one job title. The court found that the alleged violations did not turn on the nature of the work, and that “liability can be determined collectively without limiting the class to a specific job position.” The collective the court conditionally certified in 2020 included non-exempt workers in different roles. Under its definition, they also had to have received Additional Pay that Silvertip excluded from the regular rate.
Conditional certification is a preliminary step that allows notice to go out. It is not a finding that Silvertip broke the law. The court said it does not resolve factual disputes or decide the ultimate merits at this stage.
This was not an exemption case. The plaintiff alleged he was classified as a non-exempt employee, entitled to overtime. The dispute was about how that overtime was calculated. The order names no state-law claim.
Under the FLSA, non-exempt workers must be paid at least one and one-half times their “regular rate” for hours over 40 in a workweek. The regular rate generally includes all pay for work, not just the base hourly wage. That includes non-discretionary bonuses, which are bonuses workers are promised or expect. The law lets certain payments be left out, such as truly discretionary bonuses and per diem that reasonably repays travel costs.
The court applied, at the time of this 2020 order, the two-stage approach that most federal courts in the Fifth Circuit then followed, according to the order. It had a lenient “notice stage” for conditional certification, then a possible decertification motion after discovery. In 2021, the Fifth Circuit rejected that approach in Swales v. KLLM Transport Services. Swales now governs federal courts in Texas, Louisiana and Mississippi.
This page describes a 2020 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 in the oilfield as a wireline operator, pumping operator, or in another non-exempt (overtime-eligible) job? Did you get non-discretionary bonuses, job ticket bonuses, stage completion pay, or other extra pay on top of your hourly rate? A lawyer can review how you were paid, including whether that extra pay was counted in your overtime.
Contact the Siegel Law Group for a free consultation about your oilfield pay.
Related rulings: Minyard v. Double D Tong, another oilfield overtime case in the Western District of Texas, Calvillo v. Bull Rogers, another overtime case over Additional Pay left out of the regular rate, and Fulton v. Bayou Well Services, another case over bonus pay left out of the overtime rate.
Non-discretionary bonuses generally do, because FLSA overtime is time-and-a-half of the “regular rate,” and that rate generally includes bonuses tied to production, job completion, or set goals that workers expect to receive (29 C.F.R. §§ 778.208–.211). Only certain payments, such as truly discretionary bonuses, can be left out. If your overtime was figured on your base hourly wage alone, it may have been underpaid.
It can. In Moreno v. Silvertip, wireline operators said their employer left non-discretionary bonuses, job ticket bonuses, and stage completion pay out of their overtime calculation. The court conditionally certified a collective based on that alleged policy, but did not decide whether it was unlawful. As a general rule, pay promised for completing work is part of the regular rate.
Under the standard this court applied in 2020, they could when the claim was about a shared pay practice. In Moreno, the employer argued wireline and pumping operators were paid bonuses differently. The court held those differences were irrelevant at the notice stage, because a common scheme or policy allegedly affected all non-exempt employees.
Silvertip asked the court to limit the collective to the past two years, because the company did not begin operating until 2018. In Moreno v. Silvertip, the court kept the three-year definition. It found the change would have no practical effect, because no one should be seeking to join for work done before the company existed.
Under the FLSA’s statute of limitations, each underpaid paycheck of a wireline operator or other non-exempt worker generally must be claimed within two years, or three for willful violations (29 U.S.C. § 255(a)). An opt-in wireline operator’s claim generally is treated as filed only once the court has that operator’s signed written consent on file (§ 256(b)). Workers who think their bonuses were left out of overtime should act promptly.
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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