Judge Certifies Class In Case Against Elk Energy Services For Alleged Inspector Misclassification

On Tuesday, Senior District Judge John T. Copenhaver, Jr. of the Southern District of West Virginia entered an order granting the plaintiff’s motion for conditional certification of a class of inspector employees in a Fair Labor Standards Act (FLSA) suit against an employer, Elk Energy Services, LLC for its failure to pay overtime.

The suit was filed in February against Elk Energy, a company that “provides pipeline inspection services, environmental compliance management, and project staffing, among other services, in the construction and inspection industry.” The named plaintiff, an inspector employee bringing the case on behalf of himself and others similarly situated, alleged that Elk Energy misclassified inspectors as exempt from overtime pay, in violation of the FLSA, 29 U.S.C. § 207, which entitles non-executive employees to earn time-and-half for hours worked in excess of 40 per week.

The court explained that in a conditional certification analysis, the plaintiff need only make a “‘modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.’” The judge noted that the purpose of conditional certification is “merely to provide the opportunity for putative class members to join the collective action, whether or not they decide to join.” The second stage, by contrast, “is usually triggered by a decertification motion by the defendant… in an attempt to show that ‘the plaintiffs are not, in fact, similarly situated,’” the court wrote.

In determining that the plaintiff was similarly situated with other inspectors who were “victims of a common policy or plan not to pay them overtime,” the court looked to the plaintiff’s complaint and the defendant’s interrogatory answers. The latter confirmed the claim that inspectors were paid a flat daily rate, regardless of the number of hours they worked and without overtime pay, “for some period of time,” though it was unclear of exactly how long the policy was in place.

In response to Elk Energy’s argument that the proposed class definition was “overbroad,” the court decided to “defer[] the evaluation of the individualized claims of opt-in plaintiffs until the decertification stage when more information is available to assess such claims,” as permitted by circuit precedent. The plaintiff proposed a class period covering inspectors who worked for Elk Energy during the last three years. The defendant balked, arguing that two years was sufficient because, in part, “the plaintiff has not pled facts to support a showing of a willful violation of the FLSA.”

The court reasoned that limiting the class period to two years would “concede[] the issue of willfulness without the benefit of discovery.” Instead, it found the plaintiff’s proposal “reasonable and in the interest of judicial economy.” The court also approved the conditional notice plan and required that Elk Energy supply the plaintiff with the name and personal information of inspectors, who had worked for it in the past three years.

The plaintiff is represented by Sosa-Morris Neuman and Mark A. Toor, and the defendant by Steptoe & Johnson and Jackson Kelly.