United States District Court, E.D. Louisiana
ORDER & REASONS
the Court are Plaintiff's Motions for Conditional
Certification, R. Doc. 46, and Equitable Tolling, R. Doc. 58.
Having heard oral argument and considered the parties'
briefs and the applicable law, the Court now issues this
Order and Reasons.
lawsuit arises from Plaintiff's claim that his employer
failed to pay him overtime wages for hours he worked in
excess of 40 hours per week. Jurisdiction is invoked pursuant
to 28 U.S.C. § 1331. R. Doc. 1 at 1.
Kyle Halle (“Halle”) was employed by Defendant
C-Innovation as an ROV (remotely operated (underwater)
vehicle) Technician and ROV Supervisor, from approximately
May 12, 2009 through his termination on October 12, 2015. R.
Doc. 15-1 at 1. At the time of his termination, Halle was an
ROV Supervisor. R. Doc. 15-1 at 1-2. Halle's work
assignments were typically four weeks in duration, involving
a 4-week voyage on an ROV support vessel. R. Doc. 15-1 at 2.
For each of these voyages, Halle was assigned to a particular
ROV support vessel, and ate, slept, lived, and worked aboard
that vessel. R. Doc. 15-1 at 2.
crew aboard the vessel would work 12-hour shifts for 7 days a
week (84 hours per week) during the voyage. R. Doc. 15-1 at
2. Crew members were not paid overtime, but were paid a daily
rate that was guaranteed whether or not the employee actually
worked, such as if they were ill. R. Doc. 15-1 at 2.
Plaintiff claims that this pay structure violates the Fair
Labor Standards Act, which provides that an employer can pay
non-exempt employees on a day-rate basis if the employee also
receives overtime pay (at one and one-half times the regular
hourly rate) for hours worked in excess of 40 hours per week.
R. Doc. 1 at 3.
October 30, 2015, Plaintiff filed this action seeking to
recover unpaid overtime wages, liquidated damages, and
attorney's fees and costs under the FSLA. R. Doc. 1 at 6.
On December 23, 2015, Defendant answered the complaint. R.
Doc. 12. On January 25, 2016, Defendants filed a Motion for
Summary Judgment, arguing that Plaintiff's work as an ROV
Technician and Supervisor was water-based, voyage-based, and
vessel-based, and therefore under Fifth Circuit law, he was a
seaman under the FLSA and exempt from its overtime
provisions. R. Doc. 15-1 at 6. On February 22, 2016, the
Court granted Defendant's motion. After the Court denied
Plaintiff's Motion for Reconsideration, R. Doc. 30,
Plaintiff appealed the decision to the Fifth Circuit, R. Doc.
32. The Fifth Circuit found that the record did not support
that Halle's work in calculating coordinates and
communicating that information to the captain clearly
establishes that he is a seaman. Therefore, the Fifth Circuit
held that defendant has not established as a matter of law
that the seaman exception applies, and remanded the case to
this Court. Halle, 855 F.3d at 296.
Plaintiff's Motion for Conditional Certification (R. Doc.
March 12, 2018, Plaintiff moved for conditional certification
of an opt-in class under the FLSA. R. Doc. 46. Plaintiff
alleges that Defendant had a uniform pay practice that
involved paying ROV workers a day rate with no overtime
wages. R. Doc. 46-1 at 1, 3, 8. Plaintiff further alleges
that the job duties of the ROV technicians and ROV
supervisors are similar and that the day rate applied to both
groups. R. Doc. 46-1 at 1, 3. For these reasons, Plaintiff
asks the court to conditionally certify a class including all
ROV personnel working for Defendant from October 2012 through
the present. R. Doc. 46-1 at 10. Plaintiff also asks the
court for the following: 1) notice following a proposed
schedule, 2) email notice, 3) Plaintiff's counsel be
permitted to follow-up with potential class members by phone,
and 4) Defendants be prohibited from contacting potential
class members. R. Doc. 46-1 at 10-14.
respond in opposition arguing that the putative class and
proposed notice should be amended. R. Doc. 52. Defendants do
not oppose the general class certification of ROV technicians
or the request that Defendants be prohibited from
communicating with potential class members. R. Doc. 52 at 2.
However, Defendants argue that the class should not include
ROV supervisors because Plaintiff did not allege, or mention,
supervisors in his complaint, supervisors' jobs are
different from technicians so they are not similarly
situated, and supervisors are exempt from the FLSA overtime
provisions. R. Doc. 52 at 3-6. Defendants also argue that the
collective action time period should be limited to the
maximum statutory period provided by the FLSA, three years.
R. Doc. 52 at 7. Further, because they no longer utilize the
day rate pay practice, Defendants argue that the time period
should be limited to that time when the day rate pay practice
was used. R. Doc. 52 at 7. Finally, Defendant argues that
portions of the proposed notice are improper and should be
modified. R. Doc. 52 at 7.
Plaintiff's Motion for Equitable Tolling (R. Doc.
moves for equitable tolling for potential class members due
to the delay caused by Defendant's motion for summary
judgment. R. Doc. 58. Plaintiff argues that equitable tolling
is needed because of the delay in sending notice, otherwise
potential plaintiffs will be prejudiced by the delay. R. Doc.
58-1 at 2. Plaintiff further argues that Defendants will not
be prejudiced by equitable tolling because they have been
aware of the claims and number of potential plaintiffs during
the delay. R. Doc. 58-1 at 7. Therefore, Plaintiff moves the
Court for equitable tolling ...