he would have on a given day. He testified collective class members did have a short outlook on
upcoming assignments. (Nathaniel Jones Dep. at 98:5-17.) Again, the regulations make clear
this does not fulfil the Belo contract requirement because here the employees did have
knowledge of what hours they would be working in advance of a given week. 29 C.F.R.

§ 778.405.

This situation was not one where the hours depended on irregular and unpredictable
occurrences outside of the employer’s control as was the type of situated the Belo contract was
intended to cure. See A.H. Belo Corp., 316 U.S. at 631-33. The Defendant has failed to meet its
burden to show the cause of the irregular hours is inherent in the nature of the work and beyond
its control and thus, Plaintiff has shown he is entitled to summary judgment. See Schweninger,
273 F. Supp. 3d at 954

2. Conclusion as to Purported Belo Contract & Defendant’s Liability

The Court finds Defendant did not meet its burden to show it satisfied the second
Tequirement for a Belo contract. Defendant’s failure to satisfy one element means Defendant
cannot meet its burden to establish a valid Belo contract because it cannot show all four required
elements exist.

Without a valid Belo contract Defendant failed to pay its employees according to the
FLSA. Defendant’s employees were not paid one and one-half times their regular rate for all
hours they worked over forty. Instead, they were paid a base pay amount each week without
consideration of how many hours they worked over forty and then some additional amount based
only on the base pay, irrespective of bonuses, for hours over sixty. (Parks Dep. 42: 1-23.)
Plaintiff's motion for summary judgement is granted as to the Defendant’s liability. Plaintiff and

those on behalf of whom he brings this action are thus, entitled to unpaid overtime

14


many hours they worked that week. (Leeper Decl. 4 17, ECF No. 60-1.)
2. Stage Pay

In addition to base pay, employees receive stage pay. (Def.’s Resp. Opp’n Pl.’s Mot.
Conditional Certification, Ex. A; Casarez Dep. at 43:1-2, 93:3-6, 94:6-95:10, ECF No. 57.)
Defendant’s fracking process requires drilling “stages.” (Parks Dep. at 25:9-1 9.) Twenty-four-
hour shifts produce anywhere from zero to eleven stages depending on the demands of the
customer. (/d.) Employees who are clocked in and work cither twelve-hour shift in the twenty-
four-hour period get credit for one-half of the stages drilled that day. (Jd, at 25:10-19.) Stage
pay is paid at a rate of $40.00 to $50.00 per stage and is specifically mentioned in the Terms of
Agreement. (Jd. at 57:23-58:5, Ex. 5 (stating “additional stage pay will be paid at the current
rate per customer job site”).)

Employees testified that stage pay is generally paid when a stage is completed. Jesus
Casarez testified that employees have always been paid stage pay when a stage is completed,
unless there are safety violations, performance issues, or another need for discipline. (Casarez
Dep. at 40:3-10, 43:1-2, 43:11-16, 69:14-20.) Similarly, Keith Jones stated that while the
amount paid for the bonuses was up to management, his bonuses were never withheld, though he
never had any quality issues with his stages. (Keith Jones Dep. at 6:20-24, 44:6-8.) He also
stated that when he started working for Defendant a supervisor told him there are bonuses for
finishing a stage and “[i}f [they] were to finish that stage, [they] were to be paid—cut and dry.”
(Keith Jones Dep. at 20:9-12.) Nathaniel Jones testified that stage pay payment “amounts
fluctuated [and] [y]ou earned it if you were on the pad, if you were in the crew working.”
(Nathaniel Jones, Dep. 42:15-17.) He also noted, however, that it was the company’s choice

whether to pay the bonuses and there were times when he did not get the bonus for a completed


Arnold v. Ben Kanowksy, Inc., 361 U.S. 388, 392 (1960)).

Plaintiff contends Defendant has failed to satisfy all four required elements for
establishing a valid Belo contract exists, and thus, is entitled to summary judgment. Defendant
contends it has satisfied all four required elements for establishing a valid Belo contract exists,
and thus, it is entitled to summary judgment. As explained below, the Court finds that Defendant
failed to meet its burden on one of the four requirements. The Court, therefore, need not address
the other three requirements for Defendant has not met its burden of showing all four elements
exist. Plaintiff is thus entitled to summary judgment.

1. The Duties of the Employees Must Necessitate Irregular Hours of Work

A valid Belo contract requires the defendant to show the duties of its employees
necessitate irregular hours of work. 29 U.S.C. § 207(f). The Belo contract exception “was
created to provide stable salaries for employees whose work weeks fluctuate and who would
otherwise face financial burdens from below-normal work weeks.” Donovan y. Tierra Vista,
Inc., 796 F.2d 1259, 1260 (10th Cir. 1986) (citing A. H. Belo Corp., 316 U.S. at 635.) The Sixth
Circuit has not yet interpreted the meaning of “irregular hours” in this statute, but the Fifth
Circuit has provided a definition which the Court, in the current situation, finds helpful:

For hours to be considered irregular within the meaning of section 7(f), they must,

ina significant number of weeks, fluctuate well below forty hours per week as well

as above, and the fluctuations below forty must result from work requirements, not

vacations, holidays, illness or reasons personal to the employee. This follows from

one of the basic purposes of the exception, to protect employees against “short”

paychecks when the nature of their work requires weeks of substantially fewer than

forty hours.

Donovan v, Brown Equip. & Serv. Tools, Inc., 666 F.2d 148, 154 (Sth Cir. 1982). The federal

regulations explain that the “subsection is not designed to apply in a situation where the hours of

work vary from week to week at the discretion of the employer or the employee, nor to a

10


Belo contract.? (Def.’s Mot. Summ. J. at 2, ECF No. 62.)
18 STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no genuine issue as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party
who has the burden of proof at trial fails to make a showing sufficient to establish the existence
of an element that is essential to that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).

The “party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion and identifying those portions” of the
record which demonstrate “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at
323. The burden then shifts to the nonmoving party who “must set forth specific facts showing
that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)
(quoting Fed. R. Civ. P. 56(e)). “The evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at 255 (citing Adickes v. S. H. Kress &
Co., 398 U.S. 144, 158-59 (1970). A genuine issue of material fact exists “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Jd. at 248; see also
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (The
requirement that a dispute be “genuine” means that there must be more than “some metaphysical
doubt as to the material facts.”). Consequently, the central issue is “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

? The term “Belo contract” is derived from a 1942 Supreme Court case, Walling v. A.H. Belo, Corp., 316 U.S. 624
(1942).

7


stage. (Id. at 43:7-44:24.)
3. Quarterly Bonuses

In addition to base pay and stage pay employees receive quarterly bonuses. Ud. at 37:25~
38:8.) Quarterly bonuses are mentioned in the Producers Service Corporation Employment
Manual (“Employment Manual”). (Parks Dep. Ex. 4 at 27.) Like stage pay, management
determines whether an employee gets a quarterly bonus. (Id. at 36:20-22, ECF No 60.) In
making this determination management considers many factors including the number of days the
employee worked that quarter, Defendant’s profitability at that time, and the employee’s
dependability, performance, and attitude throughout the quarter. (/d. at 38:12-17, 43:18-44: 12.)
These factors, along with the employce’s supervisor’s evaluation, are entered into a spreadsheet
which will compute the sum of the employee’s quarterly bonus. (/d. at 43:18~44:1 6, 44:23
45:18.) The purpose of the quarterly bonuses is to incentivize efficient, safe, and productive
work. (Parks Dep. 31:2-10, 31:17-20.)

4. Calculation of Overtime Pay

Defendant uses only base pay to calculate its employees’ overtime pay. (Id, at 42:19—
43:17.) Neither stage pay nor quarterly bonuses are included in the number which is multiplied
by one and one-half to determine the rate per hour an employee is entitled to for hours worked
over forty. (See id.) Additionally, Defendant only paid overtime for hours worked over sixty,
not forty. (Id. at 42:6-9.)

Plaintiff alleges that Defendant violated the FLSA, OMFWSA, and OPPA by depriving
Plaintiff, and those on whose behalf he brings the suit, of proper overtime compensation for the
hours they worked over forty per week. (Compl. ff 43, 49, 59, 70.) Defendant contends it did

not violate the FLSA, OMFWSA, or the OPPA, because it paid its employees pursuant to a valid


at not less than one and one-half times the regular rate. See 29 U.S.C. § 206(f). This exception
has become known as the Belo contract or Belo plan (“Belo contract”). See Walling v. A.H. Belo
Corp., 316 U.S. 624 (1942) (recognizing the need for an exception to the FLSA’s overtime
requirements to provide employees whose work hours fluctuate with the security of a regular
weekly income). The exception provides that an employer does not violate the overtime
requirements if: (1) the “employce is employed pursuant to a bona fide individual contract . _
(2) “the duties of such employee necessitate irregular hours of work;” (3) the contract “specifies
a regular rate of pay of not less than the minimum hourly rate . . . and compensation at not less
than one and one-half times such rate for all hours worked in excess of such maximum
workweek;” and (4) the contract “provides a weekly guaranty of pay for not more than sixty
hours based on the rates so specified.” 29 U.S.C. § 207(£). Belo contracts give employees
whose work hours fluctuate a fixed wage, which gives them “the security of a regular weekly
income” so they can have a stable budget. 4. H. Belo, 316 U.S. at 35. “The question of whether
a contract which purports to qualify an employee for exemption under section 7(f) meets the
requirements is a matter for determination by the courts.” 29 C.F.R. § 778.414(a). “This
determination will in all cases depend not merely on the wording of the contract but upon the
actual practice of the parties thereunder.” Id.

“The employer has the burden of proving that all elements [required under 207(f)] are
present in order to come within the exception.” Donavan v. Brown Equip. & Serv. Tools, 666
F.2d 148, 153 (Sth Cir. 1982); see also Acton v. City of Columbia, 436 F.3d 969, 976 (8th Cir.
2006); Johnson v. City of Columbia, S.C., 949 F.2d 127, 129-30 (4th Cir. 1991). “Belo
[contracts] are to be narrowly construed against the employer asserting them . . . and must be

considered in light of their purposes.” Brown Equip. & Serv. Tools, 666 F.2d at 153 (citing


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JESUS CASAREZ,
Individually and on Behalf of All
Others Similarly Situated,
Case No. 2:17-cv-1086
Plaintiff, JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson
v.

PRODUCERS SERVICE
CORPORATION,

Defendant.

OPINION AND ORDER

This matter is before the Court on Plaintiff Jesus Casarez’s, Individually and on Behalf of
All Others Similarly Situated, (“Plaintiff”) Motion for Partial Summary Judgment (ECF No. 52)
and Contingent Motion for Partial Summary Judgment (ECF No. 54), Defendant Producers
Service Corporation’s (“Defendant”) Response in Opposition (ECF No. 63), Plaintiff's Reply in
Support (ECF No. 65), and Defendant’s Motion for Summary Judgment (ECF No. 62),
Plaintiff's Response in Opposition (ECF No. 64), and Defendant’s Reply in Support (ECF No.
66). For the reasons that follow, Plaintiff's Motion for Partial Summary Judgment is
GRANTED in part and HELD IN ABEYANCE in part (ECF No. 52), Plaintiff's Contingent
Motion for Summary Judgment is DENIED as moot (ECF No. 54), and Defendant’s Motion for
Summary Judgment is DENIED (ECF No. 62).

I. BACKGROUND
This action arises out of alleged violations of the Fair Labor Standards Act (“FLSA”)

29 U.S.C. §§ 201 et seq., the Ohio Minimum Fair Wage Standards Act (“OMFWSA”), Ohio


DeAngelo Adams’s time sheets reflect that in the weeks he worked less than forty hours, he had
blocks of days he was not scheduled to work. (PI.’s Mot. Summ. J. at 23-25; Ex. 5, ECF 52-5.)
The same is true of the other collective class members. (See id.)

These examples show that generally when employces had low hours it was due to their
scheduled time off. This is something within the employer’s control because it chose to create
two schedule options, both of which gave collective class members high hours some weeks and
low hours other weeks. (Parks Dep. 19:8-23.) The regulations make clear that when the hours
are irregular because of a decision within the employer’s discretion or a predetermined schedule,
this is does not fulfill the Belo contract requirement. 29 C.F.R. § 778.405.

Further, while the Court is not aware of a case in this circuit directly on point, the Court
stated above that the Fifth Circuit provided a helpful definition of irregular hours within the
meaning of this statute. Following this definition, the court in Donovan v. Welex Division of
Halliburton Corporation, found that the irregular hours of employees who were scheduled by
their employer to work five days on and then have two days off was “not the type of irregularity
contemplated by the statute.” 550 F. Supp. at 878. The court stated that in most cases, though
not all, the employees’ fluctuating hours were caused by the schedule. /d. Further, the court
noted the “timing of the days off could be anticipated with reasonable certainty and, by the
[d]fendant’s own admission, the days off fell at all days of the week irrespective of the work
load.” Jd, at 859. The court found the defendant “failed to show the kind of irregularity in non-
overtime hours necessary for the valid use of a Belo [contract],” and therefore denied the
defendant’s motion for summary judgment and granted the plaintiffs’. Jd.

The facts of the instant case are similar to Welex in that the Defendant has chosen to

implement a schedule with scheduled days off but has not provided any evidence that the days

12


situation where the employee works an irregular number of hours according to a predetermined
schedule.” 29 C.F.R. § 778.405. Further, “[t]he nature of the employee’s duties must be such
that neither he nor his employer can either control or anticipate with any degree of certainty the
number of hours he must work from week to week.” Id. (emphasis added).

The parties agree that Defendant’s non-management oilfield operations employees work
irregular hours ranging above and below forty hours per week. (See PI.’s Mot. Summ J. at 14;
Def.’s Mot. Summ. J. at 10.) Plaintiff argues, however, that while the schedules are irregular, the
duties of the employees do not necessitate this irregularity. (P1.’s Resp. Def.’s Mot. Summ. J. at
13.) Instead, it is Defendant’s scheduled periods of reduced work for its employees, which does
not satisfy the second requirement because the irregularity is not inherent in the nature of their
work. (Id.) (citing Donovan v. Welex, Div. of Halliburton Corp., 550 F. Supp. 855, 858 (W.D.
Tex. 1982) (denying the validity of a Belo contract because while a couple of weeks showed low
hours due to workload, the majority of low hours were caused by the employer’s scheduling,
something within its control); see also Harp v. Cont’l/Moss-Gordin Gin Co., 259 F. Supp. 198,
200 (M.D Ala. 1966) (noting that because the plaintiffs were informed each week, in advance, of
the number of hours they would work the following week, this “controlled employment” was
“contrary to the requirements of a ‘Belo’ contract”).) In contrast, Defendant argues the irregular
hours were caused by the nature of the work, not any decision made by Defendant. (Def.’s Mot.
Summ. J. at 10)

The Court finds that Defendant has failed to meet its burden to show the cause of the
employees’ irregular hours was inherent in the nature of the work and beyond Defendant’s
control. Plaintiff provides numerous examples where employees’ time sheets show low hours

during weeks the employees had scheduled time off. (id. at 22-25.) For example, Plaintiff

11


that one party must prevail as a matter of law.” Hamad v. Woodcrest Condo. Ass’n,, 328 F.3d
224, 234-35 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 25 1-52).
Ul. DISCUSSION

Plaintiff moves for partial summary judgment with respect to the failure of Defendant’s
Belo contract, and thus, its failure to pay overtime as required by the FLSA, and Plaintiff's
proposed method of calculating damages. (P].’s Mot. Summ. J. at 3.) In the alternative, Plaintiff
moves for partial summary judgment regarding the nondiscretionary nature of stage pay and
quarterly bonuses and the requirement that such bonuses be included in Plaintiff's regular rate of
pay for purposes of paying overtime wages. (PL’s Contingent Mot. Partial Summ. J. at 3, ECF
No. 54.) In addition, Defendant moves for summary judgment on all of Plaintiff's claims.
(Def.’s Mot. Summ J. at 1.)
A. Validity of Defendant’s Belo Contract

The FLSA provides that employers cannot employ employees for a workweek longer
than forty hours unless the employee receives overtime compensation “at a rate not less than one
and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1) (emphasis
added). The statute defines the regular rate to include “all renumeration for employment paid to,
or on behalf of, the employee.” Jd. at § 207(e). In addition, eight different types of payments are
specifically excluded from the definition of a regular rate.> Jd. at § 207(e)(1)-(8).

The statute goes on to provide an exception to the rule requiring overtime compensation

3 In sum, these exclusions include sums paid as gifts, such as those made during holidays, rewards for service,
payments made when no work is performed due to vacation, holiday, illness, etc., payments for traveling expenses,
payments made where both the fact that it is to be made and the amount given is at the sole discretion of the
employer, payments made pursuant to a bona fide profit-sharing or savings plan, talent fees paid to performers, extra
compensation by a premium rate for certain hours worked because they are in excess of eight in a day or in excess of
normal working hours, extra compensation for work on Sundays, holidays, the seventh day, etc., premiums pursuant
to a collective bargaining plan for hours outside of those established by contract, and any value derived from gifts or
rights to a stock option, stock appreciation right, or a similar right. See 29 U.S.C. § 207(e) (1)-(8).

8


amount of hours under extreme circumstances.” (id. at 22:8-12.) Importantly, however, he
testified later that an increase in hours in a given week was because they “were scheduled more
work that week than [the] next week . . . it was scheduling on the management|’s] part.” (Cd. at
51:11-13.) Thus, due to several different factors, the schedules varied from week to week, but
Plaintiff, and those on whose behalf he brings this suit, did have advance notice of the hours they
would be working. (Nathaniel Jones Dep. at 98:5-17; Keith Jones Dep. 22:8-12. 51:11-13.)
B. Plaintiff’s Compensation

Plaintiff, and those employees on behalf of which he brings this suit, are paid a base pay,
stage pay, and quarterly bonuses. !

1. Base Pay

Plaintiff, and those on behalf of whom he brings this action, are paid a specific amount,
for most employees $1,538.00, bi-weekly, as laid out by the document given to employees
labeled “Terms of Agreement” (“Terms of Agreement”), (Def.’s Resp. Opp’n Pl.’s Mot.
Conditional Certification, Ex. A, ECF No. 15.) The Terms of Agrecment refers to this payment
schedule as the “Belo bi-weekly pay schedule.” (id) Further, the Terms of Agreement states
there will be “additional overtime after 60 hours.” (id) This specific amount paid bi-weekly,
referred to as base pay, is the pay the worker is entitled to for working forty hours a week at their
regular wage and twenty more hours a week at one and one-half times their regular wage. For
example, for employees with a base pay of $1,538.00 bi-weekly, this amount represents being
paid $10.99 per hour for the first forty hours a week, and then $16.38 per hour for the remaining

twenty hours. (Parks Dep. at 24:5—-11.) Employees receive this base pay regardless of how

' In the Defendant’s briefing they also mention a third type of payment, year-end bonuses. (Def.’s Mot. Summ. J. at
13.) The parties, however, do not appear to argue that year-end bonuses effect the Belo contract or have any other
effect on this case. As such, the Court will only address base pay, stage pay and quarterly bonuses, the payments in
dispute,


compensation.
B. Plaintiff's Method of Calculating Unpaid Overtime Compensation

Plaintiff has moved for summary judgment with respect to his proposed method of
calculating damages. Defendant has stated that Plaintiff's proposed calculations are flawed and
requests further briefing on the issue. The Court will allow Defendant a response to Plaintiff's
motion and Plaintiff a reply to Defendant’s Tesponse in accordance with Local Rule 7.2.
Plaintiff's motion for summary judgment on the issue of calculation of damages, therefore, is
held in abeyance.
C. Plaintiff's OMFWSA and OPPA Claims

Defendant moves for summary judgment on both of Plaintiff's Ohio law claims.
Plaintiff's claims under the OMFWSA and OPPA are indistinguishable from Plaintiff's FLSA
claim. The parties agree that both of the Ohio laws require that employers pay their employees
consistent with the FLSA. Ohio Revised Code § 4111.03(A) (“An employer shall pay an
employee for overtime at a wage rate of one and one-half times the employee’s wage rate for
hour worked in excess of forty hours in one workweek, in the manner and methods provided in
and subject to the exemptions of section 7 and section 13 of the [FLSA].”); Mitchell v,
Abercrombie & Fitch, Co., 428 F. Supp. 2d 725, 732 (S.D. Ohio 2006), aff'd, 225 F. App’x 362
(6th Cir. 2007) (noting that “[cJourts have uniformly held that Ohio’s wage and hour law should
be interpreted in accordance with the FLSA” and thus deciding that “the Court’s findings with
respect to Plaintiffs’ FLSA claims apply equally to Plaintiffs’ claims under the [OMFWSA]”);
Twaddle v. RKE Trucking Co., No. 2:04-CV-557, 2006 U.S. Dist. LEXIS 18028 » *37-38 (S.D.
Ohio 2006) (finding that “the Court’s rulings with respect to the FLSA claim apply also to the

Plaintiff's claim under [§ 41 13.15(B) of the OPPA.]”) The Defendant’s failure to show they

15


employee chooses the first or second schedule. (Ud. at 19:24-20:5.) Plaintiff and the other non-
managerial oilfield operations employees regularly work more than forty hours per week. (See

e.g., Pl.’s Br. Supp. Pl.’s Mot. Summ. J. Regarding Belo Contract, Ex. E [hereinafter Pl.’s Mot.

Summ. J.], ECF No. 53.) At times, they also work less than forty hours per week. (/d.)

In their depositions, Defendant’s non-managerial oilfield operations employees provided
a variety of reasons as to why their schedules fluctuated above and below forty hours per week.
Several employees agreed that their work hours varied each week due to the amount of work
available at the time. (Foster Dep. at 66:22-67:1, ECF No. 58; Nathaniel Jones Dep. at 97:9-
98:4, ECF No. 59.) For example, counsel for Defendant asked Nathaniel Jones, who in the past
Was a non-managerial oilfield operations employee for Defendant, “ils it fair to say that how
many hours you worked in a given week over the course of your employment was just
determined by the work . . . [hJow much work there was to do?” (Nathaniel Jones Dep. at 97:9-
14.) He responded, “[y]es.” (/d.) Counsel for Defendant also asked Nathaniel Jones, however,
if he agreed that “because of the fluctuations in the market and the industry, [he] did [not]
necessarily know how much work there was going to be to do... week to week, month to
month.” To this question Nathaniel Jones responded: “[w]e would know. We had a projected
outline. ‘They would tell us we [have] got four jobs for December . . . so we had a short outlook
on how much work we had.” (Nathaniel Jones Dep. at 98:5-17.)

Similarly, Defense counsel asked Keith Jones, a non-managerial oilfield operations
employee for Defendant, what he knew about the up and down of the oilfield in comparison to
how much work he had. (Keith Jones Dep. 22:1-2, ECF No. 61 -) Keith Jones responded that
“part of it is working extra hard when we [are] understaffed due to the wide tange of fluctuation.

One day we may have nothing to do, but the next time we {are] having to work an extreme


Revised Code §§ 4111.01, 4111.03, and 4111.19, and the Ohio Prompt Pay Act (“OPPA”), Ohio
Revised Code § 4113.15. Plaintiff brings this action both individually and on behalf of all others
similarly situated as a collective action pursuant to Section 16(b) of the FLSA and as a class
action pursuant to Federal Rule of Civil Procedure 23, (Compl. J 17, ECF No. 1.) On May 25,
2018 the Court granted Plaintiff's Motion for Conditional Certification of Collective Action and
named the class “[a]ll current and former employees of Defendant who were employed as non-
management oilfield operations employees for Defendant at any time since December 14, 2014.”
(ECF No. 18.) Plaintiff alleges Defendant does not pay its non-management oilfield operations
employees overtime wages as required by the FLSA, OMF WSA, and OPPA. (Compl. J 4.)

Defendant is a for-profit limited liability company providing products and services in the
oil and gas industry throughout the United States. (Parks Dep. at 13:9-13, ECF No. 60.)
Defendant employed Plaintiff as an oilfield equipment operator, a non-management oilfield
operations position. (/d. at 14:10-21.) Non-management oilfield equipment operators provide
the manual labor needed for pumping and fracking oil wells on site including loading,
assembling, operating, and disassembling the equipment involved. (id. at 15:7-24.)
A. Plaintiff’s Schedule

Defendant’s work for its customers requires fracking operations to run 24-hours per day.
(id. at 21:13-22:1.) Defendant’s employees work 12-hour shifis and stay in camps or hotels
while working. (Jd, at 20:18-22:8.) Defendant allows its employees to choose to work either
(1) fourteen days on and then seven days off; or (2) seven days on and then four days off,
followed by seven days on and then three days off. (Ud, at 17:25-18:17.) Defendant offers these
two schedules “to give [employees] some options as far as their ability to be at home versus

being out for two solid weeks.” (/d. at 18: 12-17.) The total labor is the same whether the


off are due to the absence of available work. Instead, Defendant has asserted the days off are
implemented to manage the work force and give them the opportunity to be at home. (Parks
Dep. 18:12-17, 19:20-23.) In fact, Defendant has asserted that when an equipment operator has
time off and is not working, the fracking job is not necessarily over. Instead, another operator is
continuing to work in place of the employee who is not working during his time off. (Parks Dep.
20:6-17.) Thus, a lack of work does not drive an employee having low hours.

Additionally, Defendant’s argument that the fluctuation in its employees’ hours is due to
the nature of the work is unpersuasive. As evidence of its contention, Defendant provides only
deposition testimony from two individuals, In response to the question “[iJs it fair to say how
many hours you worked in a given week over the course of your employment was just
determined by the work . . . [h]ow much work there was to do,” Nathanial Jones responded
“yes.” (Nathanial Jones Dep. 97:9-98:4.) Foster was asked a similar question and responded
“[rjight.” (Foster Dep. 66:22-67: 1.) These statements that the hours were determined by “the
work,” are vague and Defendant provides no explanation as to what about the work causes such
fluctuation. For example, Defendant does not provide any facts to show that the travel time, the
complexity of the work, or the type of work being done makes the nature of the hours worked
irregular. See Schweninger v. Advanced Vision Techs., Inc., 273 F. Supp. 34 946, 953 (N.D. Il.
2017) (finding the employees’ duties necessitated irregular hours because variables that
determined the length of time employees would need to work were not within the employer’s
control such as the travel time, type of product being installed, and the number and complexity of
repairs.)

Further, while Nathanial Jones testified the fluctuation in his hours was due to the nature

of the work he also testified this fluctuation did not prevent him from knowing how much work

13


paid their employees in accordance with a valid Belo contract, applies equally to the OMFWSA
and the OPPA claims. The Court, thus, denies Defendant’s motion for summary judgment on
Plaintiff's OMFWSA and OPPA claims and finds Defendant liable to Plaintiff under these acts
as well.
IV. CONCLUSION

For the reasons set forth above, the Court GRANTS in part and HOLDS IN
ABEYANCE in part Plaintiffs Motion for Partial Summary Judgment Regarding Belo Contract
(ECF No. 52), DENIES as moot Plaintiff's Contingent Motion for Partial Summary Judgment
(ECF No. 54), and DENIES Defendant’s Motion for Summary Judgment (ECF No. 62). The
Defendant is DIRECTED to respond to Plaintiff's Motion for summary judgment on damages

and Plaintiff is DIRECTED to reply, in accordance with Local Rule 7.2.

IT IS SO ORDERED.
i= 14-Jo19 aww
DATE EDMUND . SARGUS, JR.
UNIT: ‘ATES DISTRICT JUDGE

16