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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TYSON DOOLEY, individually and on behalf of all others similarly situated Plaintiff, v. NINE ENERGY SERVICE, LLC Defendant.
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Docket No. 4:15-CV-02433 JURY TRIAL DEMANDED COLLECTIVE ACTION PURSUANT TO 29 U.S.C. § 216(b)
FIRST AMENDED COLLECTIVE COMPLAINT I. SUMMARY 1.
Tyson Dooley (“Plaintiff”) brings this lawsuit to recover unpaid overtime wages and
other damages under the Fair Labor Standards Act (“FLSA”) and the New Mexico Minimum Wage Act (“NMMWA”) by Nine Energy Service, LLC (“Nine” or “Defendant”). Plaintiff, and others workers like him, were typically scheduled for 12-hour shifts, 7 days a week, for weeks at a time out in the oilfield. But these workers never received overtime for hours worked in excess of 40 in a single work week. Instead of paying overtime as required by the FLSA and the NMMWA, Defendant paid Plaintiff a hybrid base salary and job bonus. This collective action seeks to recover the unpaid overtime wages and other damages owed to these workers. II. JURISDICTION AND VENUE 2.
This Court has original subject matter jurisdiction pursuant to 28 U.S.C. § 1331
because this action involves a federal question under the FLSA. 29 U.S.C. § 216(b). The Court also has supplemental jurisdiction over the various state sub-classes pursuant to 28 U.S.C. § 1367. 3.
Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b).
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III.THE PARTIES 4.
Tyson Dooley worked for Defendant during the relevant statutory time period as a
wireline field engineer. His consent to be a party plaintiff is on file with the Court. 5.
The “FLSA Class” of similarly situated employees is: All current and former employees of CDK Perforating, LLC (“CDK”) or Nine Energy Services, LLC (“Nine”), who were employed by CDK or Nine in conjunction with the CDK business during the past three years as a wireline field engineer engineer.
6.
The “Individuals with NMMWA Claims” are: All current and former employees of CDK Perforating, LLC (“CDK”) or Nine Energy Services, LLC (“Nine”), who were employed by CDK or Nine in conjunction with the CDK business during the past three years as a wireline field engineers, who worked in New Mexico and who filed consents to join this lawsuit.
7.
Nine Energy Service, LLC answered and appeared. IV. COVERAGE UNDER THE FLSA
8.
At all times hereinafter mentioned, Defendant has been an employer within the
meaning of the Section 3(d) of the FLSA, 29 U.S.C. § 203(d). 9.
At all times hereinafter mentioned, Defendant has been part of an enterprise
within the meaning of Section 3(r) of the FLSA, 29 U.S.C. § 203(r). 10.
At all times hereinafter mentioned, Defendant has been part of an enterprise
engaged in commerce or in the production of goods for commerce within the meaning of Section 3(s)(1) of the FLSA, 29 U.S.C. § 203(s)(1), in that said enterprise has and has had employees engaged in commerce or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person and in that said enterprise has had and has an annual gross volume of sales made or
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business done of not less than $500,000 (exclusive of excise taxes at the retail level which are separately stated). 11.
At all times hereinafter mentioned, Plaintiff and the FLSA Class were engaged in
commerce or in the production of goods for commerce. V. FACTS 12.
Nine is a nationwide oilfield services with significant completion and land drilling
operations throughout the United States. Nine employs field personnel and engineers to serve exploration and production companies. These individuals make up the proposed FLSA Class (which includes the Individuals with NMMWA Claims). While exact job titles may differ, these employees are subjected to the same or similar illegal pay practices for similar work. 13.
Specifically, the primary job duties of the FLSA Class included operating oilfield
machinery, collecting/relaying data, and relaying reports of daily activities to both field and remote supervisors for analysis. The FLSA Class would conduct their day-to-day activities within designated parameters and in accordance with predetermined well, work-over, completion and operational plans. 14.
The daily and weekly activities of the FLSA Class were routine and largely
governed by standardized plans, procedures and checklists created by Defendant. Virtually every job function was predetermined by Defendant, including the tools to use at a job site, the data to compile, and schedule of work and related work duties. The FLSA Class was prohibited from varying their job duties outside of the predetermined parameters. Moreover, the job functions of the FLSA Class was primarily manual labor/technical in nature, requiring little to no official training, much less a college education or other advanced degree. The FLSA Class did not have any management duties.
Finally, for the purposes of an FLSA overtime claim, the FLSA Class
performed substantially similar job duties related to servicing oil and gas operations in the field. 3
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15.
The FLSA Class also worked similar hours and was denied overtime as a result of
the same illegal pay practice. The FLSA Class generally worked 84 hours a week, but often worked more. Instead of paying overtime, Defendant paid the FLSA Class a base salary plus a ticket bonus. Defendant denied the FLSA Class overtime hours worked in excess of 40 in a single work week. As the controlling law makes clear, the manual labor and technical duties performed by the FLSA Class consists of non-exempt work. Therefore, Defendant owes back overtime wages to hundreds of their employees all of whom work long hours each workweek. VI. FLSA VIOLATIONS 16.
As set forth herein, Defendant violated, and is violating, Section 7 of the FLSA,
29 U.S.C. § 207, by employing employees in an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the FLSA for workweeks longer than 40 hours without compensating such employees for their employment in excess of 40 hours per week at rates no less than 1 and ½ times the regular rates for which they were employed. 17.
Defendant knowingly, willfully, or in reckless disregard carried out this illegal
pattern or practice of failing to pay the FLSA Class overtime compensation. Defendant’s failure to pay overtime was neither reasonable, nor was the decision made in good faith. Thus, Plaintiff and those who are similarly situated are entitled to overtime wages under the FLSA in an amount equal to 1 and ½ times their rate of pay, plus liquidated damages, attorney’s fees and costs. VII. 18.
COLLECTIVE ACTION ALLEGATIONS
Numerous employees have been victimized by this pattern, practice and policy
which are in willful violation of the FLSA. Many of these employees worked with Plaintiff and reported that they were paid in the same manner and were not properly compensated for all hours worked as required by the FLSA. Thus, from his observations and discussions with these employees, Plaintiff is aware that the illegal practices or policies of Defendant were imposed on the FLSA Class. 4
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19.
The FLSA Class received a salary plus a job bonus, regularly worked in excess of
40 hours per week, and was not paid overtime compensation. These employees are victims of Defendant’s unlawful compensation practices and are similarly situated to Plaintiff in terms of relevant job duties, pay provisions, and employment practices. 20.
Defendant’s failure to pay wages and overtime compensation at the rates required
by the FLSA result from generally applicable, systematic policies and practices which are not dependent on the personal circumstances of the FLSA Class. Thus, Plaintiff’s experiences are typical of the experiences of the FLSA Class. 21.
The specific job titles and precise job locations of the FLSA Class do not prevent
collective treatment.
All of the persons in the FLSA Class, regardless of their precise job
requirements or rates of pay, are entitled to be properly compensated for all hours worked in excess of 40 hours per week. Although the issue of damages may be individual in character, there is no detraction from the common nucleus of liability facts. VII. NEW MEXICO MINIMUM WAGE ACT VIOLATIONS 22.
Plaintiff incorporates all previous paragraphs and alleges that the illegal pay
practices Defendant imposed on Plaintiff were similarly imposed on individuals in the FLSA Class who worked for Nine in New Mexico as wireline field engineers and who filed consents to join this lawsuit. 23.
Nine implemented this pattern, practice, and policy in willful violation of the
NMMWA. 24.
Based on his experiences and tenure with Defendant, Plaintiff is aware that the
illegal practices or policies of Defendant were imposed uniformly on Nine’s employees in the FLSA Class who worked in New Mexico.
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25.
These workers all received a hybrid base salary and ticket bonus, regularly worked
in excess of forty (40) hours per week, and were not paid overtime compensation at one and one half times their regular rate of pay. VIII. NMMWA VIOLATIONS 26.
Plaintiff brings individual claims on behalf of all of Nine’s employees in the FLSA
Class who were employed by Defendant, filed consents to join this lawsuit, worked in New Mexico over the past three years, and who thus were victims of Defendant’s violations of the NMMWA. 27.
Defendant employed Plaintiff and other FLSA Class members to perform work in
New Mexico within the meaning of Section 50-4-21 of the New Mexico Minimum Wage Act. See N.M. Stat. Ann. § 50-4-21 (West). 28.
Pursuant to Section 50-4-9 of the NMMWA, Defendant had a duty to maintain
accurate records for the hours worked of Plaintiff and the other individuals of the FLSA Class who worked for Defendant in New Mexico. See N.M. Stat. Ann. § 50-4-9 (West). 29.
Pursuant to Section 50-4-22 of the NMMWA, “an employee shall not be required
to work more than forty hours in any week of seven days, unless the employee is paid one and onehalf times the employee's regular hourly rate of pay for all hours worked in excess of forty hours.” See N.M. Stat. Ann. § 50-4-22 (West). 30.
Pursuant to Section 50-4-26 of the NMMWA, Defendant is liable to Plaintiff and
the Individuals with NMMWA Claims “in the amount of their unpaid or underpaid minimum wages plus interest, and in an additional amount equal to twice the unpaid or underpaid wages.” See N.M. Stat. Ann. § 50-4-26 (West). Further, Defendant shall pay the attorney fees and costs of these employees, and the Court “may order appropriate injunctive relief, including requiring an employer to post in the place of business a notice describing violations by the employer as found by the court or a copy of a cease and desist order applicable to the employer.” Id. 6
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31.
Defendant violated the NMMWA by requiring Plaintiff and the Individuals with
NMMWA Claims to perform non-exempt, technical work and manual labor for more than 40 hours in a single workweek. 32.
Defendant failed to accurately record the hours of these workers and failed to pay
them at one and one half times their regular rates of pay for overtime worked. 33.
Therefore, Defendant is liable for back wages, double damages, attorney fees, and
costs to Plaintiff and the Individuals with NMMWA Claims. IX. JURY DEMAND 34.
Plaintiff demands a trial by jury. X. RELIEF SOUGHT
35.
WHEREFORE, Plaintiff prays for judgment against Defendant as follows: a.
For an Order pursuant to Section 16(b) of the FLSA finding Defendant liable for unpaid back wages due to Plaintiffs and for liquidated damages equal in amount to the unpaid compensation found due to Plaintiff;
b.
For an Order awarding Plaintiffs the costs of this action;
c.
For an Order awarding Plaintiffs attorneys’ fees;
d.
For an Order awarding Plaintiffs unpaid benefits and compensation in connection with the FLSA and NMMWA violations;
e.
For an Order awarding Plaintiffs pre- and post-judgment interest at the highest rates allowed by law;
f.
For an Order granting such other and further relief as may be necessary and appropriate.
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Respectfully submitted, By: /s/ Jessica M. Bresler FIBICH, LEEBRON, COPELAND, BRIGGS & JOSEPHSON Michael A. Josephson Fed. Id. 27157 State Bar No. 24014780 Jessica M. Bresler Fed Id. 2459648 State Bar No. 24090008 Andrew W. Dunlap Fed Id. 1093163 State Bar No. 24078444 Lindsay R. Itkin Fed Id. 1458866 State Bar No. 24068647 1150 Bissonnet Houston, Texas 77005 713-751-0025 – Telephone 713-751-0030 – Facsimile mjosephson@fibichlaw.com jbresler@fibichlaw.com adunlap@fibichlaw.com litkin@fibichlaw.com AND BRUCKNER BURCH, PLLC Richard J. (Rex) Burch Texas Bar No. 24001807 8 Greenway Plaza, Suite 1500 Houston, Texas 77046 713-877-8788 – Telephone 713-877-8065 – Facsimile rburch@brucknerburch.com ATTORNEYS IN CHARGE FOR PLAINTIFF CERTIFICATE OF CONFERENCE I conferred with counsel for Defendant who is unopposed to the filing of the First Amended Complaint. /s/ Jessica M. Bresler Jessica M. Bresler 8