UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Transcription

1 Case 4:10-cv Document 1 Filed in TXSD on 07/07/10 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MICHAEL PHILLIPS, on Behalf of Himself and Others Similarly Situated, CASE NO. Plaintiffs, v. JURY TRIAL DEMANDED ENGLOBAL CORPORATION, Defendant. ORIGINAL COMPLAINT SUMMARY 1. ENGlobal Corporation (ENGlobal) violates the Fair Labor Standards Act (FLSA) by failing to pay its field service workers overtime. ENGlobal pays these workers using a day rate system. Workers receive a flat amount for each day they work. When they work more than 40 hours in a week, ENGlobal does not pay them overtime. This collective action seeks to recover the unpaid wages and other damages owed to these workers. JURISDICTION AND VENUE 2. This Court has original subject matter jurisdiction pursuant to 28 U.S.C and 29 U.S.C. 216(b). 3. Venue is proper in this Court pursuant to 28 U.S.C (b) & (c) because ENGlobal resides in this District. 1

2 Case 4:10-cv Document 1 Filed in TXSD on 07/07/10 Page 2 of 5 PARTIES 4. Michael Phillips (Phillips) is a former employee of ENGlobal. ENGlobal employed Phillips within the past three years and paid him according to its day rate system. Exhibit 1 is Phillips written consent to this action. 5. Phillips brings this action on behalf of himself and all other ENGlobal workers in the United States who ENGlobal paid according to its day rate system (collectively, the Day Rate Workers). 6. ENGlobal is a corporation headquartered in Houston, Texas. FACTS 7. ENGlobal is an energy engineering and professional services firm. Among other things, ENGlobal provides pipeline inspection services. 8. ENGlobal employs more than 1,000 workers in several U.S. states and Canada. ENGlobal s gross revenues have exceeded $300 million for each of the past three years. 9. ENGlobal is an enterprise engaged in commerce within the meaning of the FLSA. 10. Over the past three years, ENGlobal has employed hundreds of workers including Phillips as Day Rate Workers. 11. ENGlobal pays its Day Rate Workers a day rate for the work they perform. 12. An employer can pay a non-exempt employee on day rate basis provided the employee receives overtime pay for hours worked in excess of 40 in a week. 29 C.F.R The employee s regular rate is determined by totaling all the sums received at such day rates in the workweek and dividing by the total hours worked. The employee is then entitled to extra half-time pay at this rate for all hours worked in excess of 40 in the workweek. 2

3 Case 4:10-cv Document 1 Filed in TXSD on 07/07/10 Page 3 of ENGlobal knows its Day Rate Workers work more than 40 hours in a week because their timesheets regularly indicate 50 or more hours in a week. 1 Nonetheless, ENGlobal does not pay its Day Rate Workers overtime it merely pays them the daily rate times the number of days worked. 14. By failing to calculate and pay the overtime owed to its Day Rate Workers, ENGlobal violated the FLSA. 15. ENGlobal is well aware of the fact that its payment plan is illegal. ENGlobal has received complaint regarding its overtime pay practices with respect to Day Rate Workers. ENGlobal nonetheless continues to deny its Day Rate Workers overtime pay. 16. ENGlobal s day rate policy affects all the Day Rate Workers in a similar manner. Phillips and the other Day Rate Workers are similarly situated for the purposes of their overtime claims. The collective action class is therefore properly defined as: All Day Rate Workers employed by ENGlobal in the past three years. 2 CAUSE OF ACTION 17. Phillips incorporates the preceding paragraphs by reference. 18. By failing to pay Phillips and the other Day Rate Workers overtime at one-andone-half times their regular rates, ENGlobal violated the FLSA s overtime provisions. 19. ENGlobal owes Phillips and the other Day Rate Workers the difference between the rates actually paid and the proper overtime rate. Because ENGlobal knew, or showed reckless disregard for whether, its pay practices violated the FLSA, ENGlobal owes these wages for at least the past three years. 1 2 definition. If anything, ENGlobal s time sheets understate the hours worked by its Day Rate Workers. Day Rate Worker Clyde Landry filed his own FLSA action and is excluded from this class 3

4 Case 4:10-cv Document 1 Filed in TXSD on 07/07/10 Page 4 of ENGlobal also owes Phillips and the other Day Rate Workers an amount equal to all unpaid overtime wages as liquidated damages. 21. Phillips and the other Day Rate Workers are entitled to recover all reasonable attorneys fees, costs and expenses incurred in this action. 22. Phillips demands a trial by jury. JURY DEMAND PRAYER Wherefore, Phillips prays for relief as follows: 1. An order allowing this action to proceed as a representative collective action under the FLSA; 2. Judgment awarding Phillips and the other Day Rate Workers all unpaid overtime compensation, liquidated damages, attorneys fees, costs and expenses under the FLSA; 3. Pre- and post-judgment interest at the highest rate allowable by law; and 4. All such other and further relief to which Phillips and the other Day Rate Workers may show themselves to be justly entitled. 4

5 Case 4:10-cv Document 1 Filed in TXSD on 07/07/10 Page 5 of 5 Respectfully submitted, BRUCKNER BURCH PLLC /s/ Rex Burch By: Richard J. (Rex) Burch S.D. Tex. No Texas Bar No Attorney-In-Charge for Plaintiffs 1415 Louisiana Street, Suite 2125 Houston, Texas Telephone: (713) Telecopier: (713) rburch@brucknerburch.com Derrick G. Earles (La#29570) BRIAN CAUBARREAUX & ASSOCIATES, LLC 144 W. Tunica Drive Marksville, Louisiana Telephone: (318) Facismile: (318) digger@caubarreaux.com 5