Case 4:18-cv-02379 Document 1 Filed in TXSD on 07/11/18 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MATTHEW SCHERIGER, AND ALL OTHERS SIMILARLY SITUATED UNDER 29 USC § 216(b),
Plaintiffs, v.
Civil Action No.
CISCON SERVICES, INC.,
Defendant. ORIGINAL COLLECTIVE ACTION COMPLAINT Plaintiff Matthew Scheriger, individually and on behalf of those similarly situated, brings this action and in support shows the Court the following: SUMMARY 1.
This is an opt-in collective action brought pursuant to the Fair Labor Standards Act,
29 U.S.C. § 201, et seq, (“FLSA”). 2.
Defendant provides oilfield services to its oil and gas industry customers throughout
the United States. Defendant has employed non-exempt workers to assist with directly and indirectly providing services to its customers at jobsites (“Non-Exempt Employees” or “NEEs”) over the past three years. 3.
NEEs regularly work in excess of 40 hours per workweek. Defendant does not pay
NEEs a guaranteed sum of money each workweek. Rather, Defendant pays NEEs on a non-exempt basis. Specifically, Defendant paid NEEs on an hourly basis and/or based on the quantity of work performed, including on a on a per-foot-of-pipe laid basis, per-job basis, and per-assignment basis (collectively, “Piece Rate Pay”). 4.
Defendant has violated the FLSA by failing to pay NEEs for all overtime hours
worked and overtime at the legally required rate in violation of the FLSA. Defendant has specifically
ORIGINAL COMPLAINT
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violated the FLSA by paying NEEs pursuant to its (1) “Uncounted Hours Policy” that fails to pay an NEEs overtime premium for all overtime hours worked; and (2) “Overtime Miscalculation Policy” that fails to pay NEEs overtime at the rate required by the FLSA. 5.
Uncounted Hours Policy: Defendant failed to accurately track or count hours
worked by NEEs on tasks paid on a Piece Rate Pay basis. As a result of this willful failure to count or track the hours associated with this work, Defendant failed to pay an overtime premium for all overtime hours worked. The categories of time Defendants specifically failed to accurately track or pay for by instituting and enforcing their Uncounted Hours Policy includes: •
PRE-JOB WORK: Defendant required NEEs to report to Defendant’s facility to load Defendant’s trucks with materials and perform other required pre-job tasks prior to performing work at jobsites.
•
TRAVEL WORK: Following the completion of Pre-Job Tasks, Defendant required NEEs to travel to job sites to perform oilfield services. Following the completion of a job, Defendant required NEEs to travel back to Defendant’s facility to perform Post-Job Work. Travel to and from each job site depended on the job location, but generally took anywhere from 30 minutes to an hour each way.
•
POST-JOB WORK: Defendant required NEEs to return to Defendant’s facility to unload Defendant’s tools/equipment and wrap-up Defendant’s operations for that job.
Because Defendant failed to accurately track or count hours worked by NEEs on these tasks towards overtime, Defendant violated the NMMWA by failing to pay NEEs overtime compensation for all hours worked in excess of 40 per workweek. 6.
Defendant also violated the FLSA by failing to properly calculate overtime for the
overtime hours it managed to track, count and pay to NEEs. Defendant specifically miscalculated overtime by failing to include all required remuneration earned by NEEs into the regular rate of pay to determine overtime compensation. This policy did not depend on the specific form of pay provided to Plaintiffs. Rather, Defendant categorically excluded all additional pay—other than piece rate or hourly pay—provided to NEEs from the regular rate of pay. The additional payments ORIGINAL COMPLAINT
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categorically excluded from the regular rate of pay (“Additional Pay”) include, without limitation, non-discretionary bonus pay, haul pay, and ride pay. Defendants’ policy of categorical exclusion of Additional Pay from the regular rate (“Overtime Miscalculation Policy”) violated the FLSA. PARTIES 7.
Plaintiff worked for Defendant as an NEE over the past two years and worked over
40 hours in one or more workweeks during that time period. 8.
Plaintiff brings this action individually and on behalf of those similarly situated
pursuant to the FLSA (“Class Members"). The Class Members include all of Defendant’s NEEs employed over the past three years who (1) received Piece Rate Pay basis and/or (2) who received Additional Pay excluded from the regular rate of pay. This definition includes, but is not limited to, NEEs who were subject to the Uncounted Hours Policy and/or the Overtime Miscalculation Policy defined above. 9.
Defendant Ciscon Services, Inc. is a Texas Corporation that may be served through
its registered agent Gary J. White at 2440 Oakdale, Houston, Texas 77004. COVERAGE 10.
At all material times, Defendant has acted, directly or indirectly, in the interest of an
employer or joint employer with respect to Plaintiff and the Class Members. 11.
At all times hereinafter mentioned, Defendant has been an employer or joint
employer within the meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d). 12.
At all times hereinafter mentioned, Defendant has 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, Defendant has 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 otherwise working on ORIGINAL COMPLAINT
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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 business done of not less than $500,000 (exclusive of excise taxes at the retail level which are separately stated). Plaintiff and the FLSA Class Members all handled materials in interstate commerce, including oilfield equipment and tools or office equipment, to perform their work for Defendant. 14.
At all times hereinafter mentioned, Plaintiff and the 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. § 203(e)(1). FACTUAL ALLEGATIONS 15.
Defendant has had business operations throughout the United States throughout the
last three years. Its annual gross volume of sales made and business done exceeded $500,000.00 per year at all relevant times. 16.
Plaintiff worked as an NEE for Defendant from approximately May 2017 to March
17.
As a NEE, Plaintiff’s primary job duties consisted of performing non-exempt work
2018.
involved with directly and indirectly providing Defendant’s oilfield services to customers. 18.
Plaintiff routinely worked over 40 hours per workweek.
19.
Defendant did not pay Plaintiff overtime pay for all hours she worked in excess of
40 per workweek. 20.
Instead of paying Plaintiff with overtime pay for all overtime hours worked or at the
legally required overtime rate, Defendant paid Plaintiff pursuant to the Uncounted Hours and Overtime Miscalculation Policies. See ¶¶ 5-6, supra. 21.
Defendant knew that Plaintiff worked in excess of 40 hours per week.
22.
Plaintiff is entitled to receive overtime pay for all overtime hours he worked in
excess of 40 hours per workweek. ORIGINAL COMPLAINT
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23.
Defendant willfully failed to pay overtime for all overtime hours worked despite
previously being sued for failing to pay for all overtime hours worked in violation of the FLSA in previous lawsuit(s). See e.g. Taylor v. Ciscon Services, Inc., No. 4:13-cv-2569 (S.D. Tex. Dec. 17, 2013). Despite receiving notice of the FLSA requirements as a result of this suit, Defendant continued to not pay for all overtime hours worked at the rate required by the FLSA. Moreover, Defendant’s failure to keep accurate or complete records of Plaintiffs’ hours and employment exposes the willful nature of Defendant’s violations. COLLECTIVE ACTION ALLEGATIONS 24.
Plaintiff and the Class Members performed the same or similar job duties non-
exempt job duties directly and indirectly providing Defendant’s services to customers. Defendant subjected all NEEs to the same two illegal pay provisions: The Uncounted Hours and Overtime Miscalculation Policies that respectively failed to pay NEEs (1) overtime for all hours worked in excess of 40 per workweek, and (2) one-and-one-half times their regular rate of pay for all overtime hours worked. Accordingly, the FLSA Class Members are similarly situated to Plaintiff with respect to job duties and pay provisions. 25.
Defendant’s failure to pay overtime compensation at the rates required by the FLSA
results from generally applicable policies or practices and do not depend on the personal circumstances of the Class Members. As employees paid on a non-exempt basis, Plaintiff and all Class Members are entitled to overtime at a rate of one-and-one-half their regular rate for all hours worked in excess of 40 per week regardless of their precise job requirements or rate of pay. Although the issue of damages may be individual in character, there is no detraction from the common nucleus of liability facts. The questions of law and fact commonly apply to Plaintiff and all Class Members that worked for Defendant during the statutory time period. COUNT I: FAILURE TO PAY WAGES IN ACCORDANCE WITH THE FLSA ORIGINAL COMPLAINT
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26.
Plaintiff incorporates all allegations previously made in this Complaint.
27.
During the relevant time period, Defendant 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 pay. Defendant willfully failed to pay Plaintiff and the Class Members in accordance with the FLSA. RELIEF SOUGHT 28.
Plaintiff, individually and on behalf of the Class Members, prays for judgment
against Defendant as follows: a. For an Order pursuant to Section 16(b) of the FLSA finding Defendants liable for unpaid back wages due to Plaintiff (and those who may join in the suit) and for liquidated damages equal in amount to the unpaid compensation found due to Plaintiff (and those who may join the suit); b. For an award of attorneys’ fees, expenses, expert fees and costs incurred by Plaintiff (and those who may join the suit) in vindicating their rights under federal law; c. For a service payment to Plaintiff for services provided on behalf of the Class Members; d. For an Order awarding Plaintiff (and those who may be included in the suit) prejudgment and post-judgment interest at the highest rates allowed by law; e. For such other and further legal or equitable relief as this Court deems to be just and appropriate. Respectfully submitted, /s/ Jack Siegel JACK SIEGEL Co-Attorney in Charge Texas Bar No. 24070621 jack@siegellawgroup.biz Siegel Law Group, PLLC ORIGINAL COMPLAINT
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2820 McKinnon, Suite 5009 Dallas, Texas 75201 P: (214) 790-4454 J. DEREK BRAZIEL Co-Attorney in Charge Texas Bar No. 00793380 jdbraziel@l-b-law.com TRAVIS GASPER Texas Bar No. 24096881 gasper@l-b-law.com Lee & Braziel, L.L.P. 1801 N. Lamar Street, Suite 325 Dallas, Texas 75202 P: (214) 749-1400 F: (214) 749-1010 www.overtimelawyer.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document will be served on Defendant along with a copy of the Summons for this Action.
/s/ Jack Siegel JACK SIEGEL
ORIGINAL COMPLAINT
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