Thrower v. UniversalPegasus International, Inc., No. 3:2019cv00068 - Document 59 (S.D. Tex. 2020)
Court Description: MEMORANDUM OPINION AND ORDER granting 28 MOTION to Certify Class (Signed by Judge Jeffrey V Brown) Parties notified.(GeorgeCardenas, 4)
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Thrower v. UniversalPegasus International, Inc. Doc. 59 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 1 of 30 United States District Court Southern District of Texas ENTERED IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF TEXAS GALVESTON D IVISION September 03, 2020 David J. Bradley, Clerk No. 3:19-cv-0 0 0 68 BRANDON THROWER ON BEHALF OF H IMSELF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAIN TIFF, v. U NIVERSALP EGASUS, I NT’L I NC., AND UNIVERSAL E NSCO, I NC., DEFENDAN TS . MEMORAN D U M OPIN ION AN D ORD ER J EFFREY VINCENT BROWN , UNITED STATES DISTRICT J UDGE . Before the court is Brandon Thrower’s m otion for con dition al certification under the Fair Labor Stan dards Act. 1 Having considered the parties’ argum en ts and the applicable law, and for the reasons discussed below, the court grants the m otion . I. FACTU AL BACKGROU N D The defendants—Un iversal Ensco, Inc. (“UEI”) an d its parent com pan y, UniversalPegasus In ternation al, In c. (“UPI”)—operate a pipelin e-engin eering firm that provides engineering and field services to oil, gas, an d power clients across the United States and internation ally. 2 1 Dkt. 28. 2 Dkt. 31 at 7. Page-number citations to documents that the parties have filed refer to those that the court’s electronic-case-filing system autom atically assigns. 1 Dockets.Justia.com Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 2 of 30 Thrower worked for UEI as an electrical and instrum entation inspector in Oklahom a an d Kansas from Decem ber 10 , 20 17, through April 11, 20 18 . 3 During his em ploym ent, Thrower claim s he was com pensated on a day-rate basis, m eaning he received a flat daily rate and was not paid overtim e for an y work he perform ed in excess of 40 hours per workweek. 4 On February 18, 20 19, Thrower sued the defendants for alleged violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 20 1, et seq., on behalf of him self and sim ilarly situated “inspectors.”5 Thrower claim s the defendants m isclassify UEI’s inspectors as exem pt from overtim e com pensation under UEI’s day-rate com pensation schem e. Since filing suit, three form er UEI inspectors have opted-in as plaintiffs: (1) Chris Guinn, an electrical and instrum entation inspector stationed in Florida from Septem ber 20 17 to J une 20 18; (2) Travis Hatfield, a utility inspector station ed in Texas from August 20 18 to J un e 20 19; and (3) Cody Hill, identified only as an “inspector,” stationed in Texas from J uly 20 18 to August 20 19. 6 On Decem ber 23, Thrower m oved for con ditional certification, requesting the court con dition ally certify the followin g putative class: All current and form er Inspectors whose offer letters state that they were paid a day rate in an am oun t that is less than the weekly salary am ount n ecessary for the 29 U.S.C. § 213(a)(1) exem ptions during at 3 Dkt. 28– 15. 4 Dkt. 31 at 7. 5 Dkt. 1. 6 Dkts. 11, 22, 26; see also Dkt. 28– 16 (Guinn’s declaration); Dkt. 28– 17 (Hatfield’s declaration); Dkt. 28– 18 (Hill’s declaration). 2 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 3 of 30 least on e week in the three[-]year period prior to the date the Court authorizes n otice to the presen t. 7 In response, the defendants vociferously argue that they have fully com plied with the FLSA. Specifically, while acknowledging that UEI’s offer letter sets forth, am on g other things, the em ployee’s pay for each day of work and the num ber of days per week the em ployee is expected to work, the defendants argue this com pensation schem e qualifies as a salary, thereby exem ptin g those em ployees from the FLSA’s overtim e provisions. 8 According to the defen dants, UEI’s offer letter establishes a “guaranteed salary,” which the court can determ ine using a rate-tim es-day form ula: First, the [offer] letter provides the am ount an em ployee will be paid for each day in which the em ployee perform s an y work. Second, the letter provides the n um ber of days the em ployee is expected to work each week. To determ ine the em ployees’ m inim um guaranteed salary, UEI m ultiplies the daily am oun t against the n um ber of days the em ployee is expected to work. 9 The defen dan ts argue further that certifying a putative class of “all current and form er inspectors” is inappropriate as UEI em ploys “m ore than fourteen different” types of in spectors, each with differen t job titles and responsibilities. 10 According to the defendants, each inspector position “differ[s] in reporting structure, daily duties, and num erous other aspects of day-to-day operations.”11 7 Dkt. 28 at 7. 8 Dkt. 31– 1 at 3. 9 Id. at 4. 10 Dkt. 31 at 20 – 22. 11 Id. at 8. 3 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 4 of 30 Moreover, inspectors who share the sam e job title m ay have varying responsibilities, depending upon “which UEI client is operating the project site.”12 In his reply, Thrower highlights that the defendan ts do n ot dispute that each inspector, irrespective of his or her official job title or responsibilities, was classified as exem pt and subject to the sam e day-rate pay practice. 13 For reasons explained infra, on August 6, 20 20 , the court held a hearing to discuss the im pact of the Fifth Circuit’s recent opinion in Hew itt v. Helix Energy Solutions Group, Inc. on the parties’ respective argum en ts both for and against condition al certification. 14 At the conclusion of the hearing, the court requested each party file a proposed class definition. 15 Thrower am en ded his proposed class definition as follows: All current and form er inspectors em ployed by Universal Ensco, Inc. and [sic] whose offer letter stated that they were paid a daily rate during at least on e week in the three-year period prior to the date the Court authorizes notice to the presen t. 16 12 Id. at 21. 13 Dkt. 33 at 6. 14 956 F.3d 341 (5th Cir. 20 20 ). 15 The defendants take issue with the fact that Thrower’s amended proposed class definition “im properly attempts to expand his putative collective action beyond the scope” of his motion for conditional certification. See Dkt. 56 (emphasis in original). Their argument m isconstrues the court’s instruction. In no way did the court restrict Thrower from am ending the proposed class to include a wider range of employees. 16 Dkt. 53 at 1– 2. 4 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 5 of 30 II. LEGAL STAN D ARD S A. FLSA Obligatio n s Under the FLSA, “no em ployer shall em ploy an y of his em ployees . . . for a workweek longer than forty hours unless such em ployee receives com pensation for his em ploym ent in excess of the hours above specified at a rate not less than one and one-half tim es the regular rate at which he is em ployed.”17 The FLSA gives em ployees the right to bring an action on behalf of them selves, as well as “other em ployees sim ilarly situated.”18 Section 216(b) establishes an opt-in schem e under which plaintiffs m ust affirm atively n otify the court of their in tention to becom e parties to the suit. 19 B. Co n d itio n al Ce rtificatio n District courts have the discretion ary power to conditionally certify collective actions an d order notice to putative class m em bers. 20 When considering whether to certify a lawsuit under the FLSA as a collective action, m ost courts, including those in this circuit, use the Lusardi 21 two-stage approach. 22 The two stages of the Lusardi approach are the “n otice stage” (som etim es referred to as the “conditional-certification stage”) an d the “decertification stage.” 17 29 U.S.C. § 20 7(a)(1). 18 29 U.S.C. § 216(b). 19 McKnight v. D. Hous., Inc., 756 F. Supp. 2d 794, 80 0 (S.D. Tex. 20 10 ) (Rosenthal, J .). 20 Id. 21 Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J . 1987). 22 McKnight, 756 F. Supp. 2d at 80 0 (collecting cases). 5 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 6 of 30 At the notice stage, the district court con ducts an initial inquiry into “whether the putative class m em bers’ claim s are sufficiently sim ilar to m erit sending notice of the action to possible m em bers of the class.”23 Because of the lim ited evidence available at the notice stage, “this determ in ation is m ade using a fairly len ient stan dard, an d typically results in ‘conditional certification’ of a represen tative class.”24 In fact, courts “appear to require n othing m ore than substantial allegations that the putative class m em bers were together the victim s of a single decision, policy, or plan.”25 Still, at the notice stage, the plaintiff bears the burden of showing that a sim ilarly situated group of plaintiffs exists. 26 To do so, the plaintiff m ust generally m ake a m inim al showing that: (1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; and (2) those aggrieved individuals are sim ilarly situated to the plaintiff in relevan t respects given the claim s and defenses asserted. 27 With regard to the sim ilarly situated factor, “[s]om e factual support for 23 Acevedo v. Allsup’s Convenience Stores, Inc., 60 0 F.3d 516, 519 (5th Cir. 20 10 ) (citation om itted). 24 Mooney v. Aram co Services Co., 54 F.3d 120 7, 1214 (5th Cir. 1995). 25 Id. at 1214 n.8 (quoting Sperling v. Hoffm ann-La Roche, Inc., 118 F.R.D. 392, 40 7 (D.N.J .)). 26 See Green v. Plantation of Louisiana, LLC, CIV. 2:10 -0 364, 20 10 WL 5256354, at *6 (W.D. La. Nov. 24, 20 10 ) (“while the standard at the ‘notice stage’ is lenient, it is by no m eans autom atic” (citations omitted)), report and recom m endation adopted, CIV. 2:10 -0 364, 20 10 WL 5256348 (W.D. La. Dec. 15, 20 10 ). 27 In the absence of Fifth Circuit guidance on the appropriate test to use at the notice stage, courts are split on the appropriate elements to consider. Some courts use three elements, requiring the plaintiff to show that: (1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are sim ilarly situated to the plaintiff in relevant respects given the claim s and defenses asserted; and (3) those individuals want to optin to the lawsuit. Jones v. Cretic Energy Servs., LLC, 149 F. Supp. 3d 761, 768 (S.D. Tex. 20 15) 6 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 7 of 30 the com plaint allegations of class-wide policy or practice m ust be shown to authorize notice.”28 At the end of the day, “[c]ollective actions under the FLSA are gen erally favored because such allegations reduce litigation costs for the individual plaintiffs and create judicial efficiency by resolving in one proceeding [all] ‘com m on issues of law and fact arising from the sam e alleged . . . activity.’”29 III. AN ALYSIS The bulk of each parties’ briefing concern s a since-withdrawn Fifth Circuit opinion: Faludi v . U.S. Shale Solutions, LLC, (“Faludi I”). 30 To help fram e the parties’ respective argum en ts, a brief discussion of the FLSA’s overtim ecom pensation provisions and, m ore specifically, when em ployees are exem pt from those provisions is helpful. Under the FLSA, individuals em ployed in a bona fide executive, adm inistrative, or profession al capacity are com pletely exem pt from overtim e (Lake, J .) (collecting cases). This court, however, has already joined the growing number of courts in the Southern District that have rejected the three-element approach to Lusardi’s conditionalcertification stage. See Freem an v. Progress Residential Prop. Manager, LLC, 3:16-CV-0 0 356, 20 18 WL 160 9577, at *6 (S.D. Tex. Apr. 3, 20 18) (Edison, M.J .). 28 W alker v. Honghua Am ., LLC, 870 F. Supp. 2d 462, 466 (S.D. Tex. 20 12) (Ellison, J .) (quoting May nor v. Dow Chem . Co., CIV. A. G-0 7-0 50 4, 20 0 8 WL 2220 394, at *6 (S.D. Tex. May 28, 20 0 8) (Rosenthal, J .)); see, e.g., Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 266 (D. Minn. 1991) (allegations of plaintiff alone insufficient); Felix De Asencio v. Ty son Foods, Inc., 130 F. Supp. 2d 660 , 663 (E.D. Pa. 20 0 1) (pleadings and four declarations from putative class m embers sufficient). 29 Ry an v. Staff Care, Inc., 497 F. Supp. 2d 820 , 823 (N.D. Tex. 20 0 7) (quoting Hoffm ann– La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989)). 30 936 F.3d 215 (5th Cir. 20 19), opinion w ithdraw n and superseded, 950 F.3d 269, 271 (5th Cir. 20 20 ). 7 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 8 of 30 com pensation. 31 To establish an em ployee’s exem pt status, an em ployer m ust show, by a preponderan ce of the evidence, that the em ployee m eets both the FLSA’s “salary basis” test an d the appropriate “duties” test for the exem ption which purportedly applies. 32 Although the defen dants do n ot expressly argue the FLSA’s executive, adm inistrative, or profession al-capacity exem ptions apply, based on the argum en ts they raise in their briefing regarding the salary-basis test and duties tests, as well as the cases they cite in support, it is clear the defendants contend that (at least) the adm inistrative and executive exem ptions are in play. 33 29 C.F.R. § 541.60 0 sets forth the m inim um weekly salary an em ployee m ust receive to qualify as an exem pt executive, adm inistrative, or profession al em ployee. At the tim e Thrower filed the underlying lawsuit, 34 the m inim um weekly 31 29 U.S.C. § 213(a)(1). 32 Cow art v. Ingalls Shipbuilding, Inc., 213 F.3d 261, 262 (5th Cir. 20 0 0 ); see Meza v. Intelligent Mexican Mktg., Inc., 720 F.3d 577, 581 (5th Cir. 20 13) (“The employer m ust prove facts by a preponderance of the evidence that show the exem ption is ‘plainly and unm istakably’ applicable.” (citations om itted)). 33 See Dkt. 31 at 16– 22. Moreover, buried am ong their affirm ative defenses, the defendants argue “statutory exemptions, exclusions, exceptions, or credits under the FLSA, including but not lim ited to the [h]ightly[-c]om pensated[-e]mployee [e]xem ption, [a]dm inistrative [e]xemption, the [e]xecutive [e]xem ption, and com bination exem ption” bar Thrower’s and the opt-in plaintiffs’ claim s. See Dkt. 21 at 8. 34 Sections 541.10 0 (a)(1) and 541.20 0 (a)(1) were recently am ended, effective J anuary 1, 20 20 , to increase the m inim um applicable weekly salary from $ 455 per week to $ 684 per week. 29 C.F.R. §§ 541.10 0 (a)(1) (executive exem ption) and 541.20 0 (a)(1) (adm inistrative exemption); see also Defining and Delim iting the Exemptions for Executive, Adm inistrative, Professional, Outside Sales and Computer Employees, 84 Fed. Reg. 51230 , 51230 -31 (Sept. 27, 20 19). The current regulation differs in no other m aterial way from the version in effect at the time Thrower filed the underlying lawsuit. 8 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 9 of 30 salary was $ 455. 35 While the salary-basis test is a bit m ore nuan ced, for purposes of the court’s opinion, the m inim um -weekly-salary requirem en t is the key takeaway. In Faludi I, the plain tiff, J eff Faludi, received $ 1,0 0 0 per day (or $ 1,350 if he worked outside of Houston) consulting for an oil and gas services com pany. 36 The Fifth Circuit, while acknowledging that a day-rate com pensation is distinct from a salary un der the FLSA, held that if an em ployee’s day-rate pay was at least $ 455, then the em ployee received a predeterm ined am ount of com pensation on a weekly (or less frequent) basis necessary to satisfy the salary-basis test. 37 In other words, Faludi was guaranteed to receive at least $ 1,0 0 0 if he worked for even on e hour in a given week, which exceeds the regulatory m inim um of $ 455. 38 Notably, J udge J am es Ho—who later authored Hew itt—dissented from the m ajority’s opinion, applying a strict reading of 29 C.F.R. § 541.60 2(a), which provides in relevan t part: An em ployee will be considered to be paid on a ‘salary basis’ within the m eaning of this part if the em ployee regularly receives each pay period on a w eekly , or less frequent basis, a predeterm ined am ount constituting all or part of the em ployee’s com pensation, which am ount is not subject to reduction because of variations in the quality or quan tity of the work perform ed. 39 35 29 C.F.R. §§ 541.10 0 (a)(1) (executive exem ption) and 541.20 0 (a)(1) (adm inistrative exemption). 36 Faludi I, 936 F.3d at 217. 37 Id. at 219– 20 . 38 Id. at 219. 39 Id. at 222 (em phasis included) (citing 29 C.F.R. § 541.60 2(a)). 9 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 10 of 30 In J udge Ho’s m ind, because Faludi’s pay depended on the num ber of days he worked in a given week, he could not, as a m atter of law, receive a “predeterm ined am ount” on a weekly basis. 40 In February 20 20 , the Fifth Circuit withdrew Faludi I and decided the case on en tirely new grounds (Faludi II). 41 Both parties in this case supplem ented their condition al-certification briefing to address Faludi II. Not surprisingly, both sides argue Faludi II does not underm in e their respective positions. 42 The defendan ts, applying the sam e reasoning as the m ajority in Faludi I, conten d UEI’s inspectors’ “guaranteed” weekly salary can be determ ined by m ultiplying the em ployee’s daily rate of pay by the num bers of “work days per week”—both of which are expressly stated in UEI’s offer letter. 43 Using Thrower’s offer letter as an exam ple, applying the rate-tim es-day form ula, according to the defen dan ts, Thrower’s “guaran teed” weekly salary is $ 2,225 ($ 445 day-rate x 5 “work days per week”)—well above the FLSA’s m inim um salary requirem ent for exem ption from overtim e com pensation. 44 Thrower, on the other hand, argues his day-rate pay ($ 445) is below the FLSA’s m inim um -weekly-salary requirem ent for exem ption from overtim e 40 Id. 41 Faludi v. U.S. Shale Sols., L.L.C., 950 F.3d 269, 273– 75 (5th Cir. 20 20 ) (“Faludi II”) (“Although we think U.S. Shale’s argum ents are well-taken as to why Faludi fits within the highly compensated em ployee exem ption to the FLSA, we need not reach that issue given that Faludi is an independent contractor not covered by the FLSA’s requirements.”). 42 See Dkts. 34 and 42. 43 Dkt. 31 at 11– 13; see, e.g., Dkt. 28– 5 at 1; Dkt. 28– 6 at 1; Dkt. 28– 7 at 1. 44 See Dkt. 28– 5. 10 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 11 of 30 com pensation ($ 455) and, therefore, the reasoning in Faludi I—that if he worked “for even one hour in a given week” he was guaranteed an am ount that exceeds the regulatory m inim um of $ 455—does n ot apply. 45 Two m on ths after withdrawing Faludi I, the Fifth Circuit issued Hew itt, in which it unam biguously held that “an em ployee who is paid a daily rate is not paid on a ‘salary basis’ under 29 C.F.R. § 541.60 2(a).”46 Hewitt’s day-rate pay was between $ 90 0 – $ 1,30 0 . 47 But his com pensation depended on the num ber of days he worked in a given week (past tense), m eaning his weekly salary fluctuated from week to week. 48 Strictly interpreting 29 C.F.R. § 541.60 2(a), the Fifth Circuit reasoned as follows: Broadly speaking, [29 C.F.R.] § 541.60 2(a) requires that an em ployee receive for each pay period a “predeterm in ed am ount” calculated on a “weekly, or less frequent” pay period. To put it plainly: The salarybasis test requires that an em ployee kn ow the am ount of his pay com pensation for each weekly (or less frequent) pay period during which he works, before he works. 49 Because Hewitt “kn ew his pay only after he worked through the pay period,” the court held “he did not receive a ‘predeterm ined am ount’ ‘on a weekly, or less 45 Dkt. 28 at 14– 15. 46 See Hew itt, 956 F.3d at 342. 47 Hew itt v. Helix Energy Sols. Grp., Inc., 4:17-CV-2545, 20 18 WL 6725267, at *1 (S.D. Tex. Dec. 21, 20 18) (Hoyt, J .). 48 Hew itt, 956 F.3d at 344. 49 Id. at 343 (emphasis in original). 11 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 12 of 30 frequen t basis’—rather, he received an am oun t contingen t on the num ber of days he worked each week.”50 In the case at bar, the defendants attem pt to distinguish UEI’s pay practice from that at issue in Hew itt, citing a footnote in that opinion: “If H ewitt and [his em ployer] agreed beforehan d on the length of each hitch, there could be an argum en t that H ewitt’s salary was ‘predeterm ined.’”51 The defen dants argue UEI pays a predeterm ined salary because the UEI offer letter provides: “Com pensation for this position will be at a weekly predeterm ined am ount which equals the daily rate listed above m ultiplied by the num ber of days in the work week while you are at the work site and available to work.”52 The defendan ts are trying to fit a square peg in a roun d hole. As in Hew itt, it is im possible for UEI’s em ployees to determ ine their weekly salary until after they have worked through the pay period—m eaning, by definition, the salary is not predeterm ined. 53 Any doubt is put to rest by reading the very next senten ce in UEI’s offer letter: “The num ber of days per week listed above is the anticipated num ber of w ork day s for a ty pical w ork w eek and is subject to change.”54 Thus, contrary to the defendants’ protestation s otherwise, determ ining whether each 50 Id. at 343– 44 (em phasis in original). 51 Dkt. 56 at 2– 3 (citing Hew itt, 956 F.3d at 344 n.3 (because Hewitt’s em ployer did not raise the argument before the district court, the Fifth Circuit did not consider the argument on appeal)). 52 Dkt. 31 at 17. 53 See Hew itt, 956 F.3d at 344 (“[Hewitt] had to take the num ber of days he worked (past tense) and m ultiply by the operative daily rate to determine how m uch he earned. So Hewitt knew his pay only after he worked through the pay period.” (emphasis in original)). 54 See, e.g., Dkt. 28– 7 at 2 (emphasis added). 12 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 13 of 30 opt-in plaintiff is exem pt from the FLSA’s overtim e-com pensation requirem ents will not “require a case-by-case investigation of the actual application of [the] [d]efendan ts’ pay policies . . .”55 A. Lu s a r d i’s Tw o -Sta ge Ap p ro a ch 1. W h e th e r Oth e r Aggrie ve d In d ivid u a ls Exis t Next, the court considers whether there is a reason able basis for crediting Thrower’s assertion that other aggrieved individuals exist. 56 In addition to his own declaration, 57 Thrower has included declarations from the three opt-in plaintiffs— which are practically identical, save for the declarants’ nam e, dates of em ploym ent, and the state(s) in which he was em ployed—who testify they: (1) were em ployed by the defendan ts as “inspectors”; (2) were com pensated on a day-rate basis; (3) regularly worked m ore than 40 hours in a given workweek; an d (4) were not paid overtim e. 58 Additionally, each declarant, including Thrower, testifies he knows other inspectors who regularly worked over 40 hours per week who did not receive overtim e pay because UEI m isclassified them as exem pt. 59 On this record, the court finds Thrower has established a reasonable basis for crediting his assertion that other aggrieved individuals exist. 55 Dkt. 31 at 18. 56 McKnight, 756 F. Supp. 2d at 80 1. 57 Dkt. 20 – 15 (Thrower). 58 Dkt. 20 – 16 (Guinn); Dkt. 20 – 17 (Hatfield); Dkt. 20 – 18 (Hill). 59 See Dkt. 20 – 15; Dkt. 20 – 16; Dkt. 20 – 17; Dkt. 20 – 18. 13 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 14 of 30 2 . W h e th e r th e Aggrie ve d In d ivid u als Are Sim ila rly Situ ate d to Th ro w e r The parties’ war is prim arily waged on this final fron t—whether the aggrieved “inspectors” are sim ilarly situated to Thrower in relevant respects given the claim s an d defen ses asserted. 60 Thrower and the proposed putative class m em bers share the sam e title of “inspector.” But the defendants have dem onstrated UEI m aintains “m ore than fourteen ” differen t positions 61 that use this term : assistant chief inspector, chief 60 See Miny ard v. Double D Tong, Inc., 237 F. Supp. 3d 480 , 490 (W.D. Tex. 20 17) (“A class that encompasses a wide range of job positions m ay be conditionally certified as long as the differences between class m embers are not m aterial to the allegations of the case.” (citing Behnken v. Lum inant Min. Co., LLC, 997 F. Supp. 2d 511, 522 (N.D. Tex. 20 14)). 61 As s is tan t Ch ie f In s pe cto r: responsible for assisting the Chief Inspector with the m anagement and direction of the inspection team . Ch ie f In s pe cto r: responsible for the day-to-day im plementation of quality-control inspection throughout the construction spread; responsible for the supervision of the inspection team . Ce rtifie d W e ldin g In s pe cto r: responsible for overseeing all welding and nondestructive exam ination (“NDE”) activities on the project and ensuring that all welding and NDE activities, and all documentation relating to sam e, are in compliance with all project, regulatory, and applicable code/ standard requirem ents; certified in one or m ore of the following: AWS-CWI, AWS-SCWI, or CPWI. Co atin g In s pe cto r: responsible for ensuring that all field-coating applications, including painting of above-ground facilities, are performed according to project-coating specifications. Co m p lian ce Qu ality In s pe cto r: responsible for perform ing quality inspections and verifications for gas pipeline construction and O&M activities. Ele ctrical an d In s tru m e n tatio n In s pe cto r: inspects the electrical and instrum entation activities on the project, ensuring that all docum entation relating to the sam e comply with project, regulatory, and applicable code/ standard requirements. En viro n m e n tal In s p e cto r: responsible for overseeing the installation of environmental-m itigation m easures, including straw bale filters, silt fence erosion control fabric, geotextile fabric, gravel filters, water bars, and trench plugs. Fabricatio n W e ldin g In s p e cto r: responsible for overseeing all pipefitting and welding activities associated with the fabrication of plant stations and other fabricated assem blies 14 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 15 of 30 inspector, certified welding inspector, coating inspector, com pliance quality inspector, electronical and instrum entation inspector, environm ental inspector, fabrication welding inspector, m aterials inspector, m echanical inspector, NACE coating inspector, n on-destructive exam in ation inspector, safety inspector, senior welding inspector, utility inspector, vendor m ill inspector, and welding inspector. 62 such as value settings and launcher/ receiver facilities. Also oversees the setting and plumbing of the completed fabricated assemblies. Mate rial In s pe cto r: responsible for facilitating the timely receipt of all m aterials and enforcing m aterial quality control. Me ch an ical In s pe cto r: responsible for inspecting the mechanical activities on the project, ensuring that all documentation relating to the same com ply with project, regulatory, and applicable code/ standard requirem ents. N ACE Co atin g In s pe cto r: NACE Coating Inspector Program certified; responsible for quality control in the observation and reporting of the technical aspects of the coating project and its conform ance/ deviation from the project specification. N D E In s p e cto r: responsible for reviewing reports by the NDE contractor and for auditing welds to confirm acceptability; oversees the field im plementation of the company’s non-destructive testing program and confirming compliance with the program and applicable regulatory and code/ standard requirem ents. Safe ty In s pe cto r: oversees all activities of field personnel; develops and im plements plan for em ployee safety and ensures that safety and health concerns are given prim ary consideration. Se n io r W e ldin g In s pe cto r: responsible for overseeing all welding and NDE activities on the project, ensuring that all welding and NDE activities, and all documentation relating to same, comply with project, regulatory, and applicable code/ standard requirem ents. U tility In s pe cto r: ensures that all pipeline-construction activities adhere to client, company, and contract specifications and codes. Ve n d o r Mill In s pe cto r: responsible for inspecting m ultiple areas including pipe, mill, bench, coating, and loading out m aterial. W e ldin g In s pe cto r: responsible for welding and NDE activities on the project, ensuring that all welding and NDE activities, and all docum entation relating to sam e, com ply with project, regulatory, and applicable code/ standard requirem ents. 62 Dkt. 31 at 8– 10 , 16– 18. 15 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 16 of 30 The defendants forcefully argue that each inspector position has different responsibilities, which m ilitates strongly against finding such em ployees are sim ilarly situated for condition al certification purposes. 63 Moreover, the defendants con tend inspectors who share the sam e job title m ay have varying responsibilities, depending upon “which UEI client is operating the project site.”64 Generally, courts require that m em bers of an FLSA class have sim ilar job titles an d responsibilities. 65 But “sim ilarly situated” does n ot m ean identically situated. 66 Rather, to satisfy Lusardi’s sim ilarly situated requirem en t, a plaintiff m ust show that potential class m em bers are “sim ilarly situated . . . in relevant respects given the claim s and defenses asserted.”67 So, while the defen dan ts are correct that courts have found “em ployees with the sam e job title are n ot ‘sim ilarly situated’ for the purposes of an ‘opt-in’ FLSA class if their day-to-day duties vary substantially,”68 poten tial class m em bers’ job titles or responsibilities are n ot the end-all-be-all. The purpose of requiring class m em bers to have sim ilar job positions is to ensure judicial efficiency by “avoiding the need for individualized inquiries into 63 Id. at 10 , 16– 18. 64 Id. at 21. 65 See, e.g., Pacheco v. Aldeeb, No. 5:14– CV– 121– DAE, 20 15 WL 150 9570 , at *6 (W.D. Tex. Mar.31, 20 15) (holding that for class mem bers to be sim ilarly situated they must be subject to com mon pay provisions and have sim ilar job requirem ents). 66 Green, 20 10 WL 5256354, at *4. 67 W alker, 870 F. Supp. 2d at 466 (emphasis added) (citations om itted). 68 Dkt. 31 at 15 (citing Aguirre v. SBC Com m unications, Inc., CIV.A.H 0 5 3198, 20 0 7 WL 772756, at *12 (S.D. Tex. Mar. 12, 20 0 7) (Rosenthal, J .)). 16 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 17 of 30 whether a defendan t’s policy violates the FLSA as to som e em ployees but not others.”69 With this in m ind, courts gen erally focus on the sim ilarity of the potential class m em bers’ job positions (i.e., titles and respon sibilities), because “the n ature of the work perform ed by each plaintiff will determ ine (a) whether an FLSA violation occurred and (b) whether a relevant FLSA exem ption applies.”70 But, if the alleged FLSA violations do not turn on the n ature of the work perform ed—m eaning the differences in job titles or responsibilities are not relevant to the claim s and defenses asserted—courts can, and do, conditionally certify classes that en com pass a wide ran ge of job titles and responsibilities. 71 Here, the inspectors’ dissim ilar job titles an d responsibilities do n ot preclude conditional certification . Thrower alleges that all UEI’s inspectors were subject to the sam e pay practices which, if proven, is a per se violation of the 69 Pacheco, 20 15 WL 150 9570 , at *7 (citing Tolentino v. C & J Spec-Rent Services Inc., 716 F. Supp. 2d 642, 647 (S.D. Tex. 20 10 ) (J ack, J .) (“[T]here must be a showing of some . . . nexus that binds the claims so that hearing the cases together prom otes judicial efficiency.”)). 70 W ade v. Furm anite Am ., Inc., 3:17-CV-0 0 169, 20 18 WL 20 880 11, at *3 (S.D. Tex. May 4, 20 18) (Edison, M.J .) (quoting Tam ez v. BHP Billiton Petroleum (Am ericas), Inc., 5:15-CV-330 RP, 20 15 WL 70 75971, at *3 (W.D. Tex. Oct. 5, 20 15)). 71 Tam ez, 20 15 WL 70 75971, at *4 (“A class that encom passes a wide range of job positions m ay be conditionally certified as long as the differences between class m em bers are not m aterial to the allegations in the case.” (collecting cases)); see Kibodeaux v. W ood Group Prod., 4:16-CV3277, 20 17 WL 1956738, at *2 (S.D. Tex. May 11, 20 17) (Ellison, J .) (“[A]lthough potential class m embers m ay have had different areas of expertise, [the plaintiffs’] claim s do not appear to arise from circumstances purely personal to [them]. Because potential class m em bers were paid in the sam e m anner, and because their job duties were not different in ways that are legally relevant to their FLSA claim , the Court finds that the potential class m embers are sim ilarly situated for purposes of conditional certification.” (footnote citations om itted)). 17 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 18 of 30 FLSA—i.e., the differences between class m em bers’ particular job titles and responsibilities are n ot m aterial to the allegations in the case. 72 As in W ade v. Furm anite Am erica, Inc., the court finds J udge Robert Pitm an’s decision in Tam ez v. BHP Billiton Petroleum (Am ericas), Inc., 73 particularly instructive. In Tam ez, the plaintiff asked the court to condition ally certify a proposed class consisting of “all BHP Billiton em ployees who were paid a day rate, regardless of the n ature of their responsibilities.”74 This broad definition included em ployees with at least eight differen t job titles an d job responsibilities. 75 Like the defendants in the case at bar, BHP Billiton argued the proposed “class m em bers . . . [were] not sim ilarly situated” because of the stark differences between the proposed class m em bers’ job titles an d responsibilities. 76 Rejecting BHP Billiton’s argum ent, the Tam ez court foun d: (1) Tam ez’s dayrate allegation am ounted to a per se FLSA violation that did not depend on the job title or responsibilities of each particular plaintiff; an d (2) BH P Billiton had failed to dem onstrate why any differences in job titles and responsibilities am ong class m em bers were relevant given the day-rate allegation . 77 Based on these findings, the Tam ez court con ditionally certified the class, explaining: 72 See Murillo v. Berry Bros Gen. Contractors Inc., 6:18-CV-1434, 20 19 WL 4640 0 10 , at *4 (W.D. La. Sept. 23, 20 19). 73 Tam ez, 20 15 WL 70 75971. 74 Id. at *2. 75 Id. 76 Id. 77 Id. at *3– 4. 18 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 19 of 30 The class definition proposed by Plaintiffs is adm ittedly broad. But, the Court nonetheless finds that dissim ilar job responsibilities am on g the class have n ot been shown to be relevant to the Plain tiffs’ FLSA allegations and, thus, are not a barrier to condition al certification. 78 Here, as was the case in Tam ez and W ade, the alleged FLSA violations do not depend on each particular plaintiff’s job title or responsibilities. Rather, Thrower alleges UEI’s inspectors were paid a fixed am ount per day, irrespective of whether they perform ed work in excess of 40 hours in a given workweek. 79 If true, then the defendants violated the FLSA with regard to every non-exem pt inspector who was not paid overtim e at the legally-required rate. 80 In other words, any differences in job titles or responsibilities between potential class m em bers are im m aterial to the allegations in the case. Because Thrower alleges that the com pensation schem e is, in and of itself, a violation of the FLSA, no further factual inquiry into the job duties of each potential class m em ber is required, as “liability can be determ ined collectively without lim iting the class to a specific job position.”81 78 Id. at *4. 79 Dkt. 31 at 7. 80 See Hew itt, 956 F.3d at 343– 44 (finding em ployee who was paid a daily rate exceeding the FLSA’s m inimum -weekly-salary requirement for exemption from overtim e compensation was not paid on a “salary basis” for purposes of the FLSA’s overtime-com pensation provisions); see, e.g., Miny ard, 237 F. Supp. 3d at 490 (holding the purported dissim ilarities between the proposed class mem bers were “irrelevant because a com mon schem e or policy allegedly affected all nonexempt . . . employees”); Song v. JFE Franchising Inc., 4:17-CV-1775, 20 18 WL 3993548, at *4– 5 (S.D. Tex. Aug. 20 , 20 18) (Polerm o, M.J .) (conditionally certifying class, in part, because the defendant “failed to show why any differences in the job titles and responsibilities would be relevant to [the plaintiffs’] allegations”). 81 Tam ez, 20 15 WL 70 75971, at *3; accord W ade, 20 18 WL 20 880 11, at *4. 19 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 20 of 30 Accordingly, conditional certification is appropriate. The court now turns to the scope of the putative class. B. Cla s s D e fin itio n Thrower asks the court to certify a class consisting of: All current and form er inspectors em ployed by Universal Ensco, Inc. and [sic] whose offer letter stated that they were paid a daily rate during at least on e week in the three-year period prior to the date the Court authorizes notice to the presen t. 82 “There is no question that the FLSA supports such a broad class definition if the pay practice com plained of is com pan y-wide.”83 Still, to justify such condition al certification , Thrower m ust show a com pany-wide policy or plan under which the proposed class m em bers were subjected to the sam e FLSA violation(s). Thrower has subm itted declarations of four form er UEI inspectors who worked for UEI in four 84 differen t states, each of whom testify the defen dan ts “em ploy inspectors throughout the United States, includin g Kansas, Florida, Oklahom a, and Texas,” an d that they are “person ally aware that other inspectors were also paid on a day[-]rate basis . . . .”85 82 Dkt. 53 at 1– 2. 83 Sanchez v. Schlum berger Tech. Corp., 2:17-CV-10 2, 20 18 WL 2335333, at *9 (S.D. Tex. J an. 24, 20 18) (Ramos, J .) (citing Rueda v. Tecon Services, Inc., CIV.A. H-10 -4937, 20 11 WL 25660 72, at *4 (S.D. Tex. J une 28, 20 11) (Rosenthal, J .) and Vargas v. Richardson Trident Co., CIV.A. H-0 9-1674, 20 10 WL 730 155, at *10 (S.D. Tex. Feb. 22, 20 10 ) (Harm on, J .)). 84 Thrower repeatedly claim s he was employed in Ohio, as well. See, e.g., Dkt. 57 at 4. However, there is no evidence in the record to support this claim . See Dkt. 28– 15 at 1 (Thrower’s declaration, in which he testifies that he worked for UEI “in Kansas and Oklahom a”). 85 Dkt. 28– 15; Dkt. 28– 16; Dkt. 28– 17; Dkt. 28– 18. 20 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 21 of 30 While Thrower’s evidence in favor of certifying a n ationwide class is a bit feeble, the defendan ts adm it “UEI em ploys inspectors n ation wide”86 and do not contest Thrower’s allegation that the day-rate pay practice applies uniform ly to all UEI’s inspector positions. 87 Instead, the defendan ts con tinue to argue that UEI’s com pensation schem e constitutes a “guaranteed” salary and attack only the inspectors’ dissim ilar job titles an d respon sibilities. 88 Since geographic com m on ality is not a “sim ilarly situated” requirem en t, 89 the court sees no reason to restrict the putative class to those states in which Thrower and the opt-in plaintiffs worked for UEI, especially when the defendan ts do not dispute that UEI pays its inspectors—irrespective of the state in which they are em ployed—on a day-rate basis. On this record, the court finds Thrower has m et the n otice stage’s len ient standard of proof and established a colorable basis of a single, nationwide policy or practice of m isclassifying UEI’s inspectors as exem pt from overtim e com pensation . 90 Accordingly, the court conditionally certifies the following class: All curren t and form er inspectors em ployed by Universal Ensco, Inc., for at least one week during the three-year period before this order, 86 Dkt. 21 at 3. 87 See Dkt. 31 at 18– 20 ; Dkt. 56 at 5. 88 See id. at 20 – 22; Dkt. 56 at 2– 4; Dkt. 33 at 5– 6. 89 Vargas, 20 10 WL 730 155, at *6 (collecting cases). 90 See Burch v. Qw est Com m uns. Int’l, Inc., 50 0 F. Supp. 2d 1181, 1190 (D. Minn. 20 0 7) (“Plaintiffs have established a colorable basis that they are victims of a single, nationwide policy by [the defendant] to illegally withhold overtime pay. At this initial stage, conditional certification of a nationwide class is appropriate.”). 21 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 22 of 30 Septem ber 3, 20 17, through Septem ber 3, 20 20 , whose offer letter states that they were paid a daily rate. 91 C. N o tice to Po te n tia l Cla s s Me m be rs 1. Th e D e fe n d an ts ’ Obje ctio n s to Th ro w e r’s P ro p o s e d Me th o d s o f N o tice Federal judges have the power to authorize the sending of notice to potential FLSA class m em bers to inform them of the action an d to give them the opportunity to participate by opting in. 92 “Notice is particularly im portant for FLSA collective actions as potential plaintiffs’ statutes of lim itations con tinue to run unless and until a plaintiff ‘gives his consent in writin g to becom e a party and such consent is filed in the court in which such action is brought.’”93 It is well-settled that courts have wide discretion in deciding the notice’s conten t and how notice is distributed. 94 The defendants lodge several objections to Thrower’s proposed notice to potential class m em bers: 95 (1) the proposed notice fails to instruct potential opt-in class m em bers that they m ay seek counsel of his or her own choice; (2) e-m ail notice should not be allowed or, altern atively, only be perm itted when notice via 91 Although the defendants’ argum ent in favor of lim iting the class is unpersuasive, the court has slightly modified Thrower’s proposed class definition for clarity purposes. 92 See Hoffm ann-La Roche Inc., 493 U.S. at 169– 70 . 93 Gronefeld v. Integrated Prod. Services, Inc., 5:16-CV-55, 20 16 WL 8673851, at *5 (W.D. Tex. Apr. 26, 20 16) (citing 29 U.S.C. § 216(b)). 94 See Jackson v. Superior Healthplan, Inc., 3:15-CV-3125-L, 20 16 WL 7971332, at *6 (N.D. Tex. Nov. 7, 20 16) (“Because conditional certification is proper in this action, judicial approval of the form , content, and delivery m ethod for a collective action notice is appropriate.” (citing Hoffm ann-La Roche Inc., 493 U.S. at 171)). 95 See Dkt. 28– 20 (Thrower’s proposed notice). 22 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 23 of 30 first-class m ail is returned as un deliverable; and (3) text-m essage notice should not be allowed. 96 i. Th e N o tice S h o u ld Ad vis e Pu tative Clas s Me m be rs o f Th e ir Righ t to Ch o o s e Th e ir Ow n Co u n s e l The court agrees with the defen dan ts an d finds that the proposed notice m ust advise putative class m em bers of their right to retain separate counsel and pursue their rights in dependen tly from the class. 97 ii. E-m ail an d Te xt-Me s s a ge N o tice The defendants argue Thrower “has alleged no facts which would show [first-class] m ail to be a deficien t form of notice for this case.”98 First, that is not true—Thrower has produced evidence that n otice by m ail is insufficient for the potential class m em bers. 99 But, m ore im portantly, first-class m ail, like payphon es and dial-up internet, is quickly fading into obscurity. 10 0 Courts in this district, including this court, regularly allow notice by both m ail and e-m ail 10 1 because “e- 96 Dkt. 31 at 22– 25. 97 E.g., Snively v. Peak Pressure Control, LLC, 174 F. Supp. 3d 953, 962 (W.D. Tex. 20 16) (requiring the plaintiffs to subm it a revised proposed notice including language advising putative class mem bers of their right to seek separate representation by an attorney of their choosing). 98 Dkt. 31 at 23. 99 Dkt. 28—15 at 2 (testifying UEI inspectors will likely not receive notice if sent to their home address because they “routinely travel away from home for extended periods of time to perform their work”). 10 0 See W ade, 20 18 WL 20 880 11, at *7 (“Over the years, Americans have experim ented with various means to deliver m essages and notices, including the Pony Express, telegram s, and faxes—all now (or soon to be) considered relics of a bygone era. Truth be told, first-class m ail is probably heading towards the same fate.” (footnote citation om itted)). 10 1 See W ade, 20 18 WL 20 880 11, at *7 (citing Hernandez v. Robert Dering Constr., LLC, 191 F. Supp. 3d 675, 684 (S.D. Tex. 20 16) (Hanks, J .) (ordering defendants to produce its em ployees’ 23 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 24 of 30 m ail is not the wave of the future; e-m ail is the wave of the last decade and a half.”10 2 So, the true question before the court is whether to perm it notice to poten tial plaintiffs via text m essage in addition to e-m ail and m ail. Courts across the country are split as to whether a plaintiff should be perm itted to sen d n otice to poten tial class m em bers in FLSA actions by text m essage in addition to other, m ore traditional, notice m ethods. 10 3 Courts that have allowed n otice via text m essage have typically lim ited such notice “to cases where there is evidence that text m essaging is a form of com m unication previously used by the em ployer to com m unicate with its em ployees, or where there is high turn over in em ployees.”10 4 Recently, in Dickensheets v. Arc Marine, LLC, J udge Edison found “such tests to be unn ecessarily restrictive,” reasoning the salien t question when it com es to the m ethod of FLSA notice is whether “poten tial plaintiffs are m ore likely to receive n otice of the lawsuit if the plain tiffs are perm itted to deliver notice via text known e-m ail addresses) and Jones, 149 F. Supp. 3d at 777 (ordering production of potential class m embers’ home and e-mail addresses for the purpose of facilitating notice)). 10 2 Rodriguez v. Stage 3 Separation, LLC, No. 5:14-CV-60 3-RP, 20 15 U.S. Dist. LEXIS 18820 0 , at *6 n.1 (W.D. Tex. 20 15) (quotation cleaned up). 10 3 See, e.g., Caley DeGroote, Can You Hear Me N ow ? The Reasonableness of Sending N otice Through Text Messages and Its Potential Im pact on Im poverished Com m unities, 23 W ASH . & LEE J . CIVIL R TS. & SOC. J UST. 279, 297-98 (20 16) (discussing the split am ongst federal district courts in allowing notice via text m essage) (collecting cases). 10 4 W ingo v. Martin Transp., Inc., 2:18-CV-0 0 141-J RG, 20 18 WL 6334312, at *10 (E.D. Tex. Dec. 5, 20 18) (internal quotation m arks and citations om itted). 24 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 25 of 30 m essage in addition to e-m ail and m ail?”10 5 In answering that question, J udge Edison held that “providing notice via text m essage in addition to other traditional notice m ethods will alm ost always be m ore appropriate in m odern society.”10 6 The court agrees. While e-m ail is engrained in the fabric of our world’s com m unication structure, there is no denying that it has becom e saturated and unwieldy. The cheery days of “You’ve got m ail!” are long gon e. Now, our virtual m ailboxes are inundated with hundreds or thousands of m essages. When it com es to our person al e-m ail accounts, we have conditioned ourselves to tune the m essages out, assum ing they are un wanted advertisem ents, social-m edia notifications, unwelcom e chain m ail, a fake Nigerian prince seeking to transfer large sum s of m oney out of the country, phishing scam s, etc. The list goes on. The flood of inform ation can create an overwhelm ing feeling. So m uch so, that it is not uncom m on for people to create a new e-m ail account every couple of years, just to wipe the slate clean and rid them selves of the dread associated with sifting through hundreds of e-m ails, searching for the few that actually con tain im portant inform ation. This is why e-m ails have the infelicitous tendency of slipping through the cracks, especially when folks have m ultiple e-m ail accounts (e.g., work, person al, school) with which they m ust stay curren t. 10 5 Dickensheets v. Arc Marine, LLC, 440 F. Supp. 3d 670 , 671– 72 (S.D. Tex. 20 20 ) (Edison, M.J .) (quotation cleaned up). 10 6 Id. at 672 25 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 26 of 30 Unlike e-m ail, text m essages, at the very least, have eyes laid on them before being opened or ign ored. And while one’s e-m ail accoun t is quickly becom ing inseparable from their cell phon e—that is to say, m ost people own a sm artphone on which they receive text m essages an d e-m ails 10 7—a short vacation or busy workweek can result in literally hundreds of unread e-m ails. The sam e cannot be said about text m essages; people keep up with them . Maybe it is because texting is not as associated with work-related activities. Or m aybe it is because texting is quickly becom ing (if it has not already becom e) our prim ary m ethod of com m unicating with friends and fam ily. Whatever the reason, there is no den ying that potential plain tiffs are m ore likely to receive n otice of the collective action if a court allows text-m essage n otice, in addition to e-m ail and m ail. 10 8 In this case, text-m essage notice is particularly useful in helpin g to facilitate actual n otice of the pending lawsuit, as the class involves pipeline workers who routinely travel for work and are away from their hom e for extended periods of tim e. 10 9 As Thrower explains in his declaration, due to the nom adic nature of their 10 7 As of February 20 19, over 80 % of Am ericans own a sm artphone. P EW R ESEARCH CENTER , Dem ographics of Mobile Device Ow nership and Adoption in the United States (20 19) (available at https:/ / www.pewresearch.org/ internet/ fact-sheet/ m obile/ ). That num ber jum ps to 92– 96% when you restrict the dem ographic to ages 18– 49. See id. 10 8 See Dickensheets, 440 F. Supp. 3d at 672. 10 9 Dkt. 28—15 at 2 (testifying inspectors will likely not receive notice to their home address because they “routinely travel away from hom e for extended periods of tim e to perform their work”); see generally Bhum ithanarn v. 22 N oodle Mkt. Corp., 14-CV-2625 RJ S, 20 15 WL 4240 985, at *5 (S.D.N.Y. J uly 13, 20 15) (granting use of notice by text message “given the high turnover characteristic of the restaurant industry”). 26 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 27 of 30 job, inspectors “will likely not receive the [n]otice or n ot receive the [n]otice with enough tim e to m ake a decision whether to join the case.”110 Accordingly, in light of the overarching goal of providing potential class m em bers the opportunity to join the case, the court finds that providing notice via text m essage serves to further the FLSA’s rem edial purpose. 111 To alleviate any concern about a m isleading or incom plete text m essage, the text m essage sent to potential class m em bers m ust include a copy of the class notice that the court ultim ately approves for distribution . As for the con tent of the text m essage, the court orders the parties to confer and attem pt to reach an agreem ent by the deadline set below. 2 . N o tice Pe rio d Thrower’s m otion for con ditional certification does not include a proposed notice period. “Although opt-in periods com m only range from as little as 30 to as m any as 120 days, m ost courts appear to default to a notice period of 60 days, unless poten tial plain tiffs are difficult to contact because of their locations or other extenuating factors warrant additional tim e.”112 Given the num erous m ethods of notice the court has approved, the court finds that a 60 -day notice period is reasonable. 110 Id. 111 See Dickensheets, 440 F. Supp. 3d at 672; Lejeune v. Cobra Acquisitions, LLC, No. SA-19CV-0 0 286-J KP, 20 20 U.S. Dist. LEXIS 146714, at *3 (W.D. Tex. 20 20 ) (collecting cases perm itting notice via text m essage); 112 McCloud v. McClinton Energy Grp., L.L.C., 7:14-CV-120 , 20 15 WL 7370 24, at *10 (W.D. Tex. Feb. 20 , 20 15) (collecting cases). 27 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 28 of 30 3 . Th ro w e r’s Re qu e s t In fo rm atio n fo r Po te n tia l Cla s s Me m be rs ’ Co n tact The defendan ts also object to Thrower’s request that the court order the defendants produce an excel spreadsheet with putative class m em bers’ (1) socialsecurity num bers, (2) e-m ail addresses, and (3) phone n um bers (hom e and m obile), arguing it is “unnecessary an d overly intrusive.”113 The defen dan ts are n ot required to produce poten tial class m em bers’ socialsecurity num bers. Thrower has provided n o justifiable basis for such inform ation 114 and inadvertent disclosure could lead to uninten ded consequences such as identify theft. 115 However, as explained above, e-m ail addresses and telephone num bers are fair gam e. 113 Dkt. 31 at 25. The defendants do not object to Thrower’s request for potential class m embers’ dates of em ploym ent (start and end date) or dates of birth. See Dkt. 28 at 30 . Still, the court finds dates of birth are unnecessary and will not require the defendants produce such inform ation. 114 Thrower argues social-security numbers will help allow him to “confirm current addresses and/ or to locate those persons who m ay have moved from their last known address.” Dkt. 28 at 30 . Given the inform ation the court is requiring the defendants to produce and the m ethods of notice the court has approved, the court finds that requiring the defendants to produce potential class mem bers’ social-security num bers to be superfluous. 115 See Lee v. Veolia ES Indus. Services, Inc., 1:12-CV-136, 20 13 WL 2298216, at *15 (E.D. Tex. May 23, 20 13) (“[T]he undersigned finds it unnecessary for [the plaintiff] to receive social[]security numbers of all potential plaintiffs at this time. In the event that [the plaintiff] is unable to determine the current m ailing address of a potential plaintiff and he believes that an individual’s social[-]security number is necessary to locate the individual, [the plaintiff] can request that particular plaintiff’s social[-]security num ber at that tim e.” (internal citations om itted)); see also Heeg v. Adam s Harris, Inc., 90 7 F. Supp. 2d 856, 865 (S.D. Tex. 20 12) (Rosenthal, J .) (finding the plaintiff’s request for potential class members’ addresses and socialsecurity num bers “overbroad and unsupported by the record”) N orm an v. N eighborhood Healthcare Providers, PLLC, 2:19-CV-170 -KS-MTP, 20 20 WL 4873848, at *5 (S.D. Miss. Aug. 19, 20 20 ) (sustaining objection to produce potential class members’ social-security num bers and dates of birth). 28 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 29 of 30 4 . Fo rm o f N o tice to Po te n tial Clas s Me m be rs The defendants “request that the [c]ourt provide tim e for the parties to confer and subm it an agreed proposed n otice (alon g with unresolved objections) upon resolution of the requested certification.”116 The court orders the parties to confer on an y issues regarding the con ten t of the notice and attem pt to reach an agreem ent by the deadline set below. As for un resolved objections, the court finds that the defendan ts have waived 117 further objections to the notice—Thrower m oves for both con ditional certification and notice to potential class m em bers. *** Thrower has m ade a sufficient showing at this prelim inary stage to warran t the issuan ce of n otice, to perm it full discovery, and to allow the court to conduct a m ore rigorous an alysis at the decertification stage when it has the ben efit of m ore inform ation . Accordingly, Thrower’s m otion for condition al certification is GRANTED for a class defined as follows: All curren t and form er inspectors em ployed by Universal Ensco, Inc., for at least one week during the three-year period before this order, 116 Dkt. 31 at 25 (citing Melson v. Directech Sw ., Inc., CIV.A. 0 7-10 87, 20 0 8 WL 2598988, at *5– 6 (E.D. La. J une 25, 20 0 8)). 117 In their briefing, the defendants “reserve the right” to m ake additional objections to the proposed notice in the event the court grants Thrower’s m otion for conditional certification. Dkt. 31 at 25. The defendants have had plenty of time to raise other, reasonable objections. Additional delays in notice m ay preclude claim s of potential class m embers. E.g., Frazier v. Dall./ Fort W orth Int’l Airport Bd., 285 F. Supp. 3d 969, 975 n.5 (N.D. Tex. 20 18) (finding defendant’s failure to raise objections to the plaintiff’s proposed notice as a waiver, despite defendant’s statement that it “reserves the right” to object to the proposed notice on other grounds if the court conditionally certifies the class); Harger v. Fairw ay Mgm t., Inc., 2:15-CV-0 4232-NKL, 20 16 WL 320 0 282, at *4 (W.D. Mo. J une 8, 20 16) (“The Court considers the failure to object [to the proposed notice], notwithstanding the reservation, as a waiver.”). 29 Case 3:19-cv-00068 Document 59 Filed on 09/03/20 in TXSD Page 30 of 30 Septem ber 3, 20 17, through Septem ber 3, 20 20 , whose offer letter states that they were paid a daily rate. It is further ORDERED that within fourteen days of this order, the defendants shall provide a list in an electronic form at—whether it is in a spreadsheet is up to the defendan ts—of each individual’s full nam e, last kn own m ailing address, e-m ail address (if known), telephone n um ber (both hom e and m obile, if known), and date(s) of em ploym ent. Thrower shall have fourteen days from receipt of this in form ation to sen d notice to potential class m em bers. The optin period shall be sixty days from the date the notice is m ailed or sent via e-m ail or text m essage. It is further ORDERED that the parties m ust confer an d subm it an agreed proposed text-m essage notice within fourteen days of this order. It is further ORDERED that the parties m ust confer an d subm it an agreed proposed n otice form and agreed proposed consen t-to-join form within fourteen days of this order. Signed on Galveston Island on this, the 3rd day of Septem ber, 20 20 . ________________________ J EFFREY VINCENT BROWN U NITED STATES DISTRICT J UDGE 30
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