United States District Court, W.D. Louisiana, Lafayette Division
B. WHITEHURST LOTTED STATES MAGISTRATE JUDGE
the Court is Plaintiff, Daniel Kaesemeyer's,
“Motion to Certify Collective” in which Plaintiff
moves to conditionally certify the FLSA collective action
filed by Plaintiff [Rec. Doc. 10] against Defendant, Legend
Mining USA, Inc. and Legend Mining, Inc.
(“Legend”), Legend's Opposition [Rec. Doc.
13] and Plaintiff's Reply [Rec. Doc. 16]. For the
following reasons, Plaintiffs' Motion for Conditional
Certification will be denied.
a resident of the State of Washington, worked for Legend
Mining USA, Inc., the American subsidiary of Legend Mining,
Inc., at the Weeks Island salt mine in Iberia. The
terms and conditions of Plaintiff's employment are set
forth in the employment contract (“Contract”) as
An hourly base rate of U.S. $24.00/hr will be paid in
arrears, on the 10thand 25th of each
month. In addition you will receive 100% of set site bonus.
You will be eligible for overtime on your base hourly rate
after 40 hours worked per week.
R. 10-2. p. 2. Plaintiff signed and returned the
Contract on July 13, 2017. R. 10-2 at p.
6. Plaintiff worked at the Weeks Island
salt mine for 10 days (approximately 132 hours) and left
Defendant's employ on October 17, 2017. Id.,
¶¶ 16, 18.
alleges he was told that pay dates would be the
10th and 25th of every month. R. 1,
¶ 17. Plaintiff alleges he never received a pay
check for the 10 days he worked in October, 2017. Id. at
¶¶ 19-22. Plaintiff filed this action alleging
causes of action under the Fair Labor Standards Act
(“FLSA”) for nonpayment of wages and
miscalculated regular rate, the Louisiana Wage Payment act,
La. R.S. §§ 23:631-632 and breach of contract.
R. 1. While Plaintiff never specifically alleged in
his Complaint that he was seeking conditional certification
“on behalf of a class of similarly situated persons,
” his Complaint stated:
hereby seeks certification of a collective pursuant to 29
U.S.C. § 216(b), consisting of:
All employees of Legend Mining Inc., and Legend Mining USA,
Inc., within the United states of America, who worked within
the tree years prior to the filing of this Complaint and were
not paid overtime premiums consisting of one and a half times
their regular rate under the FLSA.
R. 1, ¶ 33. Paragraph 34 states,
“plaintiff and the members of the collective have been
injured in an amount to be proven at trial.” Id. at
instant motion, Plaintiff moves to conditionally certify a
collective action under 29 U.S.C. § 207 of the FLSA.
Plaintiff contends his Contract Remuneration provision
“clearly states” that overtime calculations must
be based solely on Kaesemeyer's “base hourly
rate” - the $24.00 per hour - and that the set site
bonus is not included in calculating the overtime premium.
R. 10, p. 2. Thus, he contends he was to be paid $44
per hour - a $24 per hour “base rate, ” plus a
guaranteed $20 per hour “site bonus.” Plaintiff
alleges that Defendants, however, calculated his overtime
premium based only on the $24 hour base rate, and did not
include the $20 per hour site bonus in the time-and-a-half
alleges this is a violation of Section 7 of the FLSA, 29
U.S.C. § 207, which requires that overtime premiums
include all compensation within an employee's
“regular rate.” Plaintiff asks this Court to
certify a collective action of all other employees of Legend
Mining USA, Inc., and Legend Mining, Inc., who were subject
to similar allegedly unlawful overtime calculations.