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Murillo v. Berry Bros General Contractors Inc

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

September 23, 2019

Murillo, individually and on behalf of all other similarly situation
v.
Berry Bros General Contractors Inc

          Michael J Juneau Judge.

          ORDER ON CONDITIONAL CERTIFICATION

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Plaintiff’s Motion For Conditional Certification And Notice filed by Plaintiff, Sergio Murillo, individually and on behalf of all other similarly situated (“Plaintiff” or “Murillo”) [Rec. Doc. 24], a Memorandum In Opposition [Rec. Doc. 26] filed by Defendant, Berry Brothers General Contractors, Inc. (“Berry Bros.”), and Plaintiff’s Reply thereto [Rec. Doc. 30]. For the following reasons, Plaintiff’s Motion will be granted in part and denied in part.

         I. BACKGROUND

         Berry Bros. is a nationwide labor contractor based out of their central headquarters located in Berwick, Louisiana. It provides six main types of oilfield and maritime construction services: 1) fabrication services, 2) civil & mechanical installation and maintenance of industrial sites, 3) electrical and instrumentation services, 4) marine services, 5) pipeline installation, and 6) drydock services. Berry Bros. has offices located in Berwick, Louisiana; Shreveport, Louisiana; Meeker, Colorado; and Pecos, Texas. It has projects in various states, including, but not limited to: Louisiana, Mississippi, South Carolina, North Carolina, West Virginia, Pennsylvania, North Dakota, Montana, Wyoming, Colorado, Kansas, Oklahoma, New Mexico and Texas.

         Murillo filed this action under the Fair Labor Standards Act (“FLSA”), alleging that Berry Bros. failed to pay him and other similarly situated workers “overtime compensation.” Id. at ¶ 1. Murillo alleges he was employed by Berry Bros. as a mechanic at its Pecos, Texas fabrication facility from approximately September 2017 to February 2018. Id. at ¶¶ 22, 32. He brings this suit on his own behalf and also on behalf of a proposed class which he moves to conditionally certify as:

All non-exempt hourly workers, such as mechanics, equipment operators, drivers, pipefitters, welders, electricians, cement and concrete workers, and other laborers, employed by Berry Bros. in the United States over the last three years whose regular rate of pay failed to include Additional Pay beyond their base hourly rate (hereinafter "Non-Exempt Laborers" or "Class Members").

R. 24.

         Murillo specifically alleges that Berry Bros. pays its workforce a base hourly rate and pays 1.5 times this hourly rate when employees work over 40 hours in a workweek. In addition to this base hourly rate, however, he contends that Berry Bros. pays its workforce additional compensation included as wages for tax purposes (“Additional Pay”). This “Additional Pay” is not included in workers’ overtime rates of pay. As a result Murillo contends that Berry Bros. violated the FLSA because it did not factor into this additional compensation overtime rates of pay, resulting in an underpayment of overtime pay. Murillo seeks to expand the definition of the conditionally-certified class to include all “non-exempt laborers” irrespective of job duties because Berry Bros.’ practice involves a uniform pay plan for those workers.

         Murillo moves to conditionally certify a collective action under 29 U.S.C. § 216(b) of the FLSA and judicially-approve notice to be sent by first class mail, email and text message[1] to all Berry Bros. employees classified as Non-Exempt Laborers or Class Members at any time during the past three years. In addition, Murillo requests Spanish translations of the Notice documents, prepared by Plaintiff and approved by the Court. If granted conditional certification under 29 U.S.C. § 216(b), Plaintiff requests that Berry Bros. be required to produce the names of all Class Members, along with their last known home addresses, e-mail addresses and telephone numbers, and dates of employment. Plaintiff further requests a Ninety (90) day Notice period for Class Members to joint this case.

         Berry Bros. denies Plaintiff’s allegations and opposes collective action certification under 29 U.S.C. § 216(b). It also objects to Plaintiff’s proposed definition of the class, the form and content of the proposed notice, and aspects of Plaintiff’s request for information.

         III. LAW AND ANALYSIS

         A. Legal Standard

         The Fair Labor Standards Act (“FLSA”) sets a general minimum wage for employees engaged in commerce. 29 U.S.C. § 206(a)(1). Section 207(a) requires covered employers to compensate nonexempt employees at overtime rates for time worked in excess of statutorily defined maximum hours. 29 U.S.C. § 207(a). Section 216(b) creates a cause of action for employees against employers violating the overtime compensation requirements. 29 U.S.C. § 216(b). Section 216(b) provides: An action ... may be maintained ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No. employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. Id.

         The FLSA affords workers the right to sue collectively on behalf of themselves and others “similarly situated” for violations of the Act's minimum wage provisions and overtime protections. 29 U.S.C. § 216(b). An employee can bring an action for violating the overtime provisions of the FLSA either individually or as a collective action on behalf of herself and “other employees similarly situated.” 29 U.S.C. § 216(b). When brought as a collective action, the plaintiff may seek “conditional class certification” from the court, which permits the plaintiff to “send[ ][a] court-approved written notice to ...


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