Rush Wellsite Lawsuit

Case 2:16-cv-00529-CRE Document 1 Filed 04/28/16 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA PITTSBURGH DIVISION TOBY VOLLMER, RYAN JANKE, AND ALL OTHERS SIMILARLY SITUATED,

Civil Action No.

Plaintiff, v.

RUSH WELLSITE SERVICES, LLC, & RUSH WELLSITE HOLDING, LLC,

COLLECTIVE AND CLASS ACTION COMPLAINT

Defendants.

CLASS AND COLLECTIVE ACTION COMPLAINT Plaintiffs Toby Vollmer and Ryan Jankes (“Plaintiffs”) bring this class and collective action lawsuit to recover unpaid overtime wages from Rush Wellsite Services, LLC and Rush Wellsite Holding, LLC (“Defendants”) and all other available relief pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.; and the Pennsylvania Minimum Wage Act (“PMWA”), 43 Pa. Stat. Ann. § 333.101, et seq. Plaintiffs assert their claim as a collective action pursuant to FLSA Section 16(b), 29 U.S.C. § 216(b) and as a class action PMWA claim under Federal Rule of Civil Procedure 23, and in support state the following: I.

SUMMARY

Plaintiffs and Defendants’ other Operators, Junior Operators, and Junior Field Engineers (hereinafter, Defendants’ frontline “Oilfield Workers”) worked for Defendants performing technical and manual labor and regularly worked well in excess of 40 hours per workweek.

Instead of paying overtime as required by the FLSA and PMWA, Defendants paid their Oilfield Workers under a hybrid base salary plus job bonus system. Later, Defendants reclassified these frontline Oilfield Workers as nonexempt and began to pay them an hourly wage plus a job bonus, but failed to incorporate the job bonuses into these Oilfield Workers’ regular rate for PLAINTIFFS’ ORIGINAL COMPLAINT

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overtime calculation purposes, further depriving these individuals of lawful overtime wages.

This class and collective action seeks to recover the unpaid overtime wages and other damages owed to Plaintiffs and Oilfield Workers as a result of Defendants’ FLSA and PMWA violations.

II. 1.

PARTIES

Plaintiff Toby Vollmer worked for Defendants as an Operator in or out of

Defendants’ Canonsburg, Pennsylvania locations. His consent to proceed as a plaintiff in this matter is attached as Exhibit A. 2.

Plaintiff Ryan Janke worked for Defendants as a Junior Field Engineer out of

Defendants’ Canonsburg, Pennsylvania and West Virginia locations. His consent to proceed as a plaintiff in this matter is attached as Exhibit B. 3.

Defendants operate or operated an oilfield service company with locations in

Canonsburg, Pennsylvania and West Virginia where Plaintiffs and other Oilfield Workers worked for Defendants.

4.

Defendant Rush Wellsite Services, LLC is a South Dakota limited liability

company that may be served through its registered agent Corporation Service Company or Jessica L. Filler, Tieszen Law Office, 306 E. Capital Avenue, Ste. 300, Pierre, SD 78701 or wherever it may be found.

5.

Defendant Rush Wellsite Holding, LLC is an Arkansas limited liability company

that may be served through its registered agent Fred Langford, 3245 Majestic Circle, Conway, AR 72034 or wherever it may be found.

6.

Plaintiffs bring this action as an FLSA collective action on behalf of themselves

and those similarly situated (“FLSA Class Members”). The FLSA Class Members are all Oilfield Workers employed by Defendants in the past three years throughout the United States who were paid a (1) base salary and job bonuses; and/or (2) paid an hourly rate plus job bonuses.

PLAINTIFFS’ ORIGINAL COMPLAINT

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7.

Plaintiffs also bring this action as a Rule 23 Class Action under the PMWA. The

Rule 23 Class (“Rule 23 Class Members”) are all Oilfield Workers employed by Defendants in the past three years who worked in or out of Pennsylvania who were either (1) paid a base salary and job bonus; and/or (2) paid an hourly rate and job bonus. FLSA Class Members and Rule 23 Class Members are collectively “Class Members.”

III. 8.

JURISDICTION AND VENUE

This Court has jurisdiction over the claims because Plaintiffs have asserted a

claim arising under federal law and specifically the FLSA. This court has jurisdiction over the state law claims pursuant to 28 U.S.C. § 1332(d) and/or 28 U.S.C § 1367.

9.

Venue is proper in this Court because the events forming the basis of the suit

occurred in this District and one or more of the Parties reside in this District.

IV. 10.

COVERAGE

At all material times, Defendants have acted, directly or indirectly, in the interest

of an employer or joint employer with respect to Plaintiffs, the FLSA Class Members, and the Rule 23 Class Members under the FLSA and PMWA. 11.

At all times hereinafter mentioned, Defendants have been employers or joint

employers within the meaning of the Section 3(d) of the FLSA, 29 U.S.C. § 203(d) and within the meaning of the PMWA. 12.

At all times hereinafter mentioned, Defendants have been an enterprise within the

meaning of Section 3(r) of the FLSA, 29 U.S.C. § 203(r).

13.

At all times hereinafter mentioned, Defendants have been 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 had employees engaged in commerce or in the production of goods for commerce, or employees handling, selling, or PLAINTIFFS’ ORIGINAL COMPLAINT

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otherwise working on goods or materials that have been moved in or produced for commerce by any person and in that said enterprise have had and has an annual gross volume of sales made or business done of not less than $500,000.00 (exclusive of excise taxes at the retail level which are separately stated).

14.

At all times hereinafter mentioned, Plaintiffs and FLSA Class Members were

individual employees who were engaged in commerce or in the production of goods for commerce as required by 29 U.S.C. §§ 206-207.

V. 15.

INDIVIDUAL AND COLLECTIVE ACTION ALLEGATIONS Plaintiffs re-allege and incorporate paragraphs 1-14 as if fully set forth in this

section of the Complaint. Plaintiffs bring Count One on behalf of themselves and the FLSA Class Members.

16.

Plaintiffs and the FLSA Class Members worked for Defendants as Oilfield

Workers within the past three years.

As Oilfield Workers, Plaintiffs and the FLSA Class

Members’ primary duties consisted of frontline work involving the preparation and operation of oilfield equipment, and performance of manual/technical labor at oilfield sites. Plaintiffs and the FLSA Class Members did not have managerial responsibilities, supervise two or more employees or exercise independent judgment in regards to matters of significance.

17.

Plaintiffs and the FLSA Class Members routinely worked over 40 hours per week,

but were not paid overtime for doing so. Defendants knew Plaintiffs and the FLSA Class Members worked in excess of 40 hours per week and they allowed and directed them to do so.

Plaintiffs and the FLSA Class Members were not paid overtime for this work. Defendants instead paid Plaintiffs and the FLSA Class Members under a hybrid base salary plus daily bonus scheme that failed to pay Plaintiffs and the FLSA Class Members overtime pay for their overtime work.

PLAINTIFFS’ ORIGINAL COMPLAINT

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18.

Plaintiffs and the FLSA Class Members are entitled to receive overtime pay for

all hours worked in excess of 40 per workweek. Defendants willfully misclassified Plaintiffs and the FLSA Class Members as exempt and refused to pay them overtime.

19.

Defendants later reclassified Plaintiffs and the FLSA Class Members and paid

them an hourly wage and job bonus. Defendants, however, failed to include the job bonuses into their regular rate for overtime calculation purposes. This system failed to pay these frontline Oilfield Workers at the proper overtime for their overtime work. Defendants were aware of the FLSA’s overtime requirements at the time of the reclassification, but willfully refused to pay Oilfield Workers overtime at the rate required by law.

VI. CLASS ACTION ALLEGATIONS: PMWA VIOLATIONS 20.

Plaintiffs re-allege and incorporates paragraphs 1-19 as if fully set forth in this

section of the Complaint. Plaintiffs bring Count Two individually and as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure and the PMWA. 21.

The PMWA entitles employees overtime compensation “not less than one-and-

one-half times” the employee’s regular rate of pay for all hours worked over 40 in a workweek.

See 43 P.S. § 333.104(c). Plaintiffs and the Rule 23 Class Members routinely worked over 40 hours per week, but were not paid overtime for doing so. Defendants knew Plaintiffs and the Rule 23 Class Members worked in excess of 40 hours per week and they allowed and directed them to do so. Plaintiffs and the Rule 23 Class Members were not paid overtime for this work.

Defendants instead paid Plaintiffs and the Rule 23 Class Members under a hybrid base salary plus daily bonus scheme that failed to pay Plaintiffs and the Rule 23 Class Members overtime pay for their overtime work. Defendants later reclassified their Oilfield Workers and began paying them under a hybrid hourly wage and job bonus scheme, but failed to include the job bonuses into the regular rate for overtime calculation purposes.

PLAINTIFFS’ ORIGINAL COMPLAINT

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22.

Plaintiffs are similarly situated to the Rule 23 Class Members because they were

all subject to the same payroll practices, policies and procedures of Defendants, performed similar work under similar conditions, were subject to the same unlawful practices alleged in this Complaint, and sustained the same or similar types of damages as a result.

23.

The Rule 23 Class Members are so numerous that the joinder of all such persons is

impracticable, and the disposition of their claims as a class will benefit the parties and the Court.

While the exact number of class members is unknown to Plaintiffs at this time, upon information and belief, the class comprises at least fifty (50) persons.

24.

Common questions of law and fact for the Rule 23 Class Members predominate

over any questions affecting any individual member, including:

25.



Whether Defendants employed the Rule 23 Class Members within the meaning of the PMWA;



Whether Defendants improperly classified the Rule 23 Class Members as exempt from overtime under the PMWA;



Whether Defendants employed or jointly employed Plaintiffs and the Class Members under PMWA;



Whether Defendants willfully violated the PMWA;



Whether Defendants attempted in good faith to conform its pay policies to the PMWA;



Whether Defendants’ failure to pay Plaintiffs and the Rule 23 Class Members overtime at the rate required by the PMWA resulted from a uniform pay policy applicable to all Rule 23 Class Members; and



Whether Defendants should be enjoined for such violations in the future.

Plaintiffs’ claims are typical of those of the Rule 23 Class Members. Plaintiffs and

the Rule 23 Class Members all worked for Defendants as Oilfield Workers, were misclassified as exempt from overtime, and were paid pursuant to Defendants’ hybrid salary plus overtime pay

PLAINTIFFS’ ORIGINAL COMPLAINT

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and/or hybrid hourly wage plus job bonus pay scheme that cheated them out of overtime pay over the past three years.

26.

Plaintiffs will fairly and adequately protect the interest of the Rule 23 Class

Members and have retained counsel experience in complex wage and hour class action litigation.

27.

The action is properly maintainable as a class action under Fed. R. Civ. P.

23(b)(2) because Defendants have acted or refused to act on grounds generally applicable to the Rule 23 Class Members, making final injunctive and/or declaratory relief appropriate to the Rule 23 Class Members as a whole.

28.

The action is properly maintainable as a class action under Fed. R. Civ. P.

23(b)(3) because (1) questions or law or fact predominate over any questions affecting individual class members; and (2) a class action is superior to other methods to ensure a fair and efficient adjudication of this controversy because—in the context of wage and hour litigation— individuals lack the financial resources to vigorously prosecute lawsuits against large corporate defendants. Class litigation is also superior because it will preclude the need for unduly duplicative litigation resulting in inconsistent judgments pertaining to Defendants’ policies and practices. No apparent difficulties exist in managing this class action. Plaintiffs intend to send notice to the proposed Rule 23 Class Members to the extent required by Fed. R. Civ. 23(c).

VII. COUNT I: FAILURE TO PAY WAGES IN ACCORDANCE WITH THE FAIR LABOR STANDARS ACT 29.

During the relevant time period, Defendants violated and continue to violate the

provisions of sections 6 and 7 of the FLSA, 29 U.S.C §§ 206-7, and 215(a)(2), by employing employees in an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the FLSA for weeks longer than 40 hours without compensating for work in excess of 40 hours per week at rates no less than one-and-a-half times their regular rates of

PLAINTIFFS’ ORIGINAL COMPLAINT

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pay. Defendants have acted willfully in failing to pay Plaintiffs and the FLSA Class Members in accordance with the law.

VIII. COUNT II: FAILURE TO PAY WAGES IN ACCORDANCE WITH PMWA, 43 § 333.104 30.

Plaintiffs and the Rule 23 Class Members are entitled to unpaid overtime in an

amount equal to one-and-one-half times the regular rate of pay for work performed in excess of 40 hours in a workweek under the PMWA. During the relevant time period, Defendants violated the PMWA by employing employees and regularly and repeatedly failing to pay employees at a rate of at least one-and-a-half times their regular rates of pay for all hours worked in excess of 40 in a workweek. As a direct and proximate result of Defendants’ unlawful conduct, Plaintiffs and the Rule 23 Class Members have suffered and will continue to suffer from a loss of income and other damages. Plaintiffs and the Rule 23 Class Members are entitled to prejudgment interest, and all costs in bringing this action that are recoverable under PMWA. IX.

RELIEF SOUGHT

WHEREFORE, Plaintiffs, on behalf of themselves and the FLSA Class Members, pray for relief against Defendants as follows in regards to his FLSA collective action claims: a.

For an Order pursuant to Section 16(b) of the FLSA finding Defendants liable for unpaid back wages due to Plaintiffs (and those who may join in the suit) and for liquidated damages equal in amount to the unpaid compensation found due to Plaintiffs (and those who may join the suit);

b.

For an Order awarding Plaintiffs (and those who may join in the suit) the costs of this action;

c.

For an Order awarding Plaintiffs (and those who may join in the suit) attorneys’ fees;

d.

For an Order awarding Plaintiffs (and those who may join in the suit) prejudgment and post-judgment interest at the highest rates allowed by law; and

PLAINTIFFS’ ORIGINAL COMPLAINT

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e.

For an Order granting such other and further relief as may be necessary and appropriate.

WHEREFORE, Plaintiffs, on behalf of themselves and the proposed Rule 23 Class Members, pray for relief against Defendants as follows in regards to their Rule 23 class action claims: a.

For an Order Certifying the Proposed Rule 23 Class as a Class Action pursuant to Fed. R. Civ. P. 23, for designation of Plaintiffs as the class representative(s), and for designation of Plaintiffs’ counsel as class counsel;

b.

For Judgment that Defendants violated PMWA by failing to pay Plaintiffs and the Rule 23 Class Members overtime compensation;

c.

For an litigation costs, expenses, and attorneys’ fees to the fullest extent permitted by law;

d.

For liquidated damages and prejudgment interest to the fullest extent permitted by law; and

e.

For an Order granting such other and further relief as may be necessary and appropriate.

Respectfully submitted, /s/ Joshua P. Geist Joshua P. Geist PA. I.D. No. 85745 Goodrich & Geist, P.C. 3634 California Ave. Pittsburgh, PA 15212 Tel: 412-766-1455 Fax: 412-766-0300 josh@goodrichandgeist.com _/s/ J. Derek Braziel___________ J. DEREK BRAZIEL (pro hac forthcoming) Texas Bar No. 00793380 JAY FORESTER (pro hac forthcoming) Texas Bar No. 24087532 Lee & Braziel, L.L.P. 1801 N. Lamar Street, Suite 325 Dallas, Texas 75202 PLAINTIFFS’ ORIGINAL COMPLAINT

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(214) 749-1400 phone (214) 749-1010 fax www.overtimelawyer.com JACK SIEGEL (pro hac forthcoming) Texas Bar No. 24070621 SIEGEL LAW GROUP PLLC 10440 N. Central Expy.

Suite 1040 Dallas, Texas 75231 (214) 706-0834 (P) (844) LOW-WAGE (F)(TF) www.siegellawgroup.biz

ATTORNEYS FOR PLAINTIFFS

PLAINTIFFS’ ORIGINAL COMPLAINT

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