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Kaesemeyer v. Legend Mining USA Inc.

United States District Court, W.D. Louisiana, Lafayette Division

March 26, 2018

Kaesemeyer
v.
Legend Mining USA Inc et al

          ORDER

          CAROL B. WHITEHURST LOTTED STATES MAGISTRATE JUDGE

         Before 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.

         I. Background

         Plaintiff, 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 follows:

         Remuneration:

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.[1] 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.

         Plaintiff 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:

         Plaintiff 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 ¶ 34.

         In the 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 overtime calculation.[2]

         Plaintiff 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.

         II. ...


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