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Decision Enables Workers to Join Case Seeking Back Pay, Other Benefits from Employer
DALLAS (Oct. 26, 2015) – A U.S. District Court judge has granted in part a motion to conditionally certify a collective action, which is a type of class action, in regard to a group of workers who are alleging their employer, Brazos Rock, Inc., violated the Fair Labor Standards Act (FLSA) by failing to provide proper overtime compensation, the national law firm of Baron & Budd reports. The case was filed in the United States District Court for the Western District of Texas, Pecos Division. (In Re: CV NO. 4:15-CV-13)
The FLSA allows for workers to file an overtime collective action lawsuit if they feel they have been denied proper overtime compensation. Employees must sign a document affirming they want to take part in the lawsuit, a practice known as “opting in.” They must also be “similarly situated,” meaning they have been subjected to a common policy enacted by their employer.
The plaintiffs in the case either work or worked as construction services employees on oilfield and pipeline projects for Brazos Rock. The company constructs pipelines and related infrastructure used in several applications, including roads, holding tanks and drilling sites. All of the plaintiffs worked as hourly employees at the defendant’s Kermit, TX facility.
The plaintiffs allege that due to the company’s policy of generally limiting pay to 10 hours per day, they were not paid for overtime when they worked in excess of 40 hours in a workweek – as mandated by the FLSA. They claim their typical workday was regularly in excess of 10 hours per day, and that much of the unpaid time was in connection with unpaid drive time to and from their main yard to the pipeline or oilfield construction worksite. In addition, one of the plaintiffs alleges that during his time as a foreman for the company, he was instructed not to report more than 10 hours per day for employees working on his job site. He claims that when he attempted to accurately report the number of hours worked, he was told he would be fired if he tried to do so again.
Furthermore, the plaintiffs claim that the employer generally paid them a $100 per day “per diem” that should have been counted as regular wages and included in calculating their overtime hourly rates of pay because the per diem was not based on out of pocket expenses they incurred on behalf of the employer. If compensation is labeled as per diem pay, but is not actually reflective of expenses employees incur on behalf of the employer, then that pay must typically be included in calculating the overtime hourly rate of pay.
On the issue of per diem pay and overtime wages, the New Orleans Times-Picayune reported in its October 16 issue that federal investigators uncovered massive per diem misclassification schemes where employers, utilizing so-called staffing agencies to obtain workers, labeled parts of the workers’ compensation as per diem pay instead of regular wages which they then excluded from calculation of the overtime hourly rate of pay. Since this per diem pay was not related to actual out of pocket expenses, this resulted in employers in Gulf Coast area construction and shipbuilding companies agreeing to pay approximately $4 million in back wages to employees who had compensation mislabeled as per diem pay instead of regular wages.
“Our attorneys will always fight aggressively on behalf of any employees who have been denied their proper overtime compensation in violation of the law,” said Allen Vaught, manager of the Employment Law Section of the national law firm of Baron & Budd. “We will not stand idly by while employers unfairly take advantage of their workers.”
The law firm of Baron & Budd, P.C., with offices in Dallas, Baton Rouge, New Orleans, Austin and Los Angeles, is a nationally recognized law firm with a nearly 40-year history of "Protecting What’s Right" for people, communities and businesses harmed by negligence. Baron & Budd’s size and resources enable the firm to take on large and complex cases. The firm represents individuals and government and business entities in areas as diverse as dangerous pharmaceuticals and medical devices, environmental contamination, the Gulf oil spill, financial fraud, overtime violations, deceptive advertising, automotive defects, trucking accidents, nursing home abuse, and asbestos-related illnesses such as mesothelioma.