Case 4:16-cv-02806 Document 1 Filed in TXSD on 09/16/16 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JOHN CRAIN, AND ALL OTHERS SIMILARLY SITUATED UNDER 29 U.S.C. 216(B), Plaintiff, v.
Civil Action No. 4:16-cv-2806
EXPRESS ENERGY SERVICES, L.L.C., Defendant.
PLAINTIFF’S ORIGINAL COMPLAINT Plaintiff John Crain (“Plaintiff”), individually and on behalf of all others similarly situated, files this Original Complaint against his former employer, Express Energy Services, L.L.C. (“Defendant” or “Express”), and in support states the following: I. 1.
SUMMARY
Plaintiff and other non-exempt employees in Defendant’s Rathole Division
worked well in excess of 40 hours per week for Defendant on a regular basis. Defendant violated the Fair Labor Standards Act (“FLSA”) by failing to include all required remuneration, including but not limited to non-discretionary bonus pay, into their regular rate when calculating and paying Plaintiff and Class Members overtime compensation. II. 2.
PARTIES
Plaintiff John Crain is an individual who worked for Defendant as an hourly
employee within the last two years at locations in Texas, Louisiana, North Dakota, Ohio, and Oklahoma. He has attached his consent to participate in this suit as Exhibit A.
PLAINTIFF’S ORIGINAL COMPLAINT
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3.
Plaintiff and the “Class Members” are Defendant’s current and former hourly
employees who received non-discretionary bonus pay during the past three years that worked in (1) Defendant’s Rathole Division and/or (2) were employed by Defendant as either a field hand or driller. This definition excludes all wireline hands who have filed consents to join Cornell v. Express Energy, No. 4:16-cv-191 (S.D. Tex. Jan. 21, 2016). 4.
Defendant Express Energy Services, L.L.C. is a Texas corporation that can be
served through its registered agent, CT Corporation System at 350 North Saint Paul Street, Dallas, Texas 75201-4240, or wherever it may be found. III. 5.
JURISDICTION AND VENUE
This Court has jurisdiction over the claim because Plaintiff has asserted a claim
arising under federal law. 6.
Venue is proper in the Southern District of Texas because a substantial portion of
the events forming the basis of this suit occurred in this District and because one or more of the Parties reside in this District. IV. 7.
COVERAGE FACTS
At all material times, Defendant has acted, directly or indirectly, in the interest of
an employer or joint employer with respect to Plaintiff and Class Members. 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 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 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 PLAINTIFF’S ORIGINAL COMPLAINT
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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 business done of not less than $500,000.00 (exclusive of excise taxes at the retail level which are separately stated). Specifically, Plaintiff and Class Members handled goods and materials that moved or were produced in interstate commerce, including but not limited to hand tools, gloves, equipment, and wrenches that moved or were produced in interstate commerce. 11.
At all times hereinafter mentioned, Plaintiff and 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. Specifically, Plaintiff and Class Members handled goods and materials that moved or were produced in interstate commerce, including but not limited to hand tools, gloves, equipment, and wrenches that moved or were produced in interstate commerce. 1 V. 12.
FACTUAL ALLEGATIONS
Defendant operates an oilfield service business throughout the United States and
did more than $500,000 per year in business during all relevant times. Defendant has multiple business divisions, including a Rathole Division. Plaintiff and Class Members were all hourly paid workers who earned hourly pay and non-discretionary bonus pay who either worked in Defendant’s Rathole Division and/or were employed by Defendant as field hands or field hands. 2 Plaintiff and Class Members perform technical and/or manual labor to assist Defendant with providing Defendant’s services. Plaintiff and Class Members regularly worked well in excess of 40 hours per week during their employment.
1 For sake of clarity, this is a specific allegation made to meet Plaintiff’s pleading obligations for individual FLSA coverage. 2 See www.eeslp.com/docs/newsletter/2014/jan102014/stories.html (establishing that Defendant has multiple service lines and divisions, including a Rathole Division). PLAINTIFF’S ORIGINAL COMPLAINT Page - 3
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13.
While an employer can pay non-exempt employees on an hourly basis, the
employees must receive time-and-one-half their regular rate for hours worked in excess of 40 per week. An hourly employee’s “regular rate” is determined by totaling all sums received and dividing by the total hours worked. The employees are then entitled to an extra half-time pay of their regular rates for the hours worked in excess of 40 in the workweek. 14.
Plaintiff and Class Members are hourly-paid employees who worked for
Defendant as a field hand, driller, or in Defendant’s Rathole division within the last three years. Plaintiff and Class Members routinely worked in 40 hours per workweek, but were not paid overtime in compliance with the Fair Labor Standards Act. Defendant knew Plaintiff and Class Members worked in excess of 40 hours per week because they scheduled and directed them to do so on a routine basis. 15.
Plaintiff and Class Members were non-exempt employees who received non-
discretionary bonuses from Defendant. Defendant paid Plaintiff and Class Members one-andone-half times their hourly rate for some hours worked, but violated the FLSA by failing to include all remuneration—including specifically non-discretionary bonus and/or “non-revenue” pay—into Plaintiff and Class Members’ regular rate for overtime calculation purposes. Excluding this additional remuneration from the regular rate resulted in Plaintiff and Class Members being underpaid their overtime wages. 16.
At some point in the last three years, Defendant began including the non-
discretionary bonus payments into the regular rate for Plaintiff and Class Members, but continues to exclude non-revenue pay from the regular rate. This non-revenue pay is compensation for Plaintiff’s and Class Members’ employment with Defendant. 17.
Defendant additionally failed to pay Plaintiff and Class Members overtime at the
proper rate for certain categories of work. For example, Defendant did not pay the proper PLAINTIFF’S ORIGINAL COMPLAINT
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overtime rate for compensable travel time. Instead, Defendant paid travel time at a lower hourly rate than the rate paid for other work tasks and paid this same rate for travel time, even when the travel time hours were worked after Plaintiff and Class Members had already worked 40 hours in a workweek. 18.
Defendant was aware of the FLSA’s overtime requirements and chose not to pay
Plaintiff and Class Members overtime in compliance with the FLSA. Defendant knowingly, willfully, or with reckless disregard carried out its illegal pattern or practice of failing to pay Plaintiff and Class Members proper overtime compensation. Specifically, Defendant knew about the FLSA’s requirements based on two Department of Labor Wage & Hour Division investigations that took place between 2012 and 2014. Defendant’s multiple, recent run-ins with the Department of Labor put it on notice of the FLSA’s requirements, yet Defendant still violated the law despite having this knowledge. VI.
COLLECTIVE ACTION ALLEGATIONS
19.
Plaintiff incorporates paragraphs 12–18 as if stated fully herein.
20.
Plaintiff and Class Members performed the same or similar job duties as one
another as described in the preceding paragraphs in that Class Members were all hourly employees performing non-exempt work. Further, Plaintiff and Class Members were subjected to the same pay provisions in that they were paid under the same pay plan and were not paid at time-and-one-half their regular rates of pay for hours worked in excess of 40 hours in a workweek. Specifically, Defendant violated the FLSA by failing to include incorporate nondiscretionary bonus pay into Plaintiff’s and Class Members’ regular rates for overtime calculation purposes. Accordingly, Class Members were also victimized by Defendant’s unlawful pattern and practices and are similarly situated to Plaintiff in terms of job duties and pay provisions. PLAINTIFF’S ORIGINAL COMPLAINT
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21.
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 Class Members. Thus, Plaintiff’s experience is typical of the experience of Class Members’. All Class Members, regardless of their precise job requirements or rates of pay, are entitled to overtime compensation for 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. The questions of law and fact are common to Plaintiff and Class Members. 22.
Defendant knowingly, willfully, or with reckless disregard carried out its illegal
pattern or practice of failing to pay overtime and minimum compensation with respect to Plaintiff and Class Members. VII. CAUSE OF ACTION: FAILURE TO PAY WAGES IN ACCORDANCE WITH THE FAIR LABOR STANDARS ACT 23.
During the relevant time period, Defendant violated and continues 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 has acted willfully in failing to pay Plaintiff and Class Members in accordance with the law. VIII. RELIEF SOUGHT 24.
WHEREFORE, cause having been shown, Plaintiff prays for judgment against
Defendant jointly and severally as follows:
PLAINTIFF’S ORIGINAL COMPLAINT
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a.
For an Order pursuant to Section 16(b) of the FLSA finding Defendant 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); and b.
For an Order awarding Plaintiff (and those who may join in the suit) the costs of
this action; c.
For an Order awarding Plaintiff (and those who may join in the suit) attorneys’
d.
For and Order awarding Plaintiff (and those who may join in the suit) pre-
fees;
judgment and post-judgment interest at the highest rates allowed by law; and e.
For an Order granting such other and further relief as may be necessary and
appropriate. Respectfully submitted, /s/ J. Derek Braziel J. DEREK BRAZIEL Co-Attorney in Charge
Texas Bar No. 00793380 JAY FORESTER Texas Bar No. 24087532 Lee & Braziel, L.L.P. 1801 N. Lamar Street, Suite 325 Dallas, Texas 75202 (214) 749-1400 phone (214) 749-1010 fax www.overtimelawyer.com JACK SIEGEL Co-Attorney in Charge
Texas Bar No. 24070621 Siegel Law Group PLLC 10440 N. Central Expy., Suite 1040 Dallas, Texas 75231 (214) 706-0834 phone (469) 339-0204 fax PLAINTIFF’S ORIGINAL COMPLAINT
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www.siegellawgroup.biz ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE This is the Original Complaint. Service of this Complaint will be made on Defendant with summons to be issued by the clerk according to the Federal Rules of Civil Procedure.
/s/ J. Derek Braziel J. DEREK BRAZIEL
PLAINTIFF’S ORIGINAL COMPLAINT
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