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, Plaintiffs 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 moct (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

Revised Code §§ 4111.01, 4111.03, and 411 1.19, 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. { 17, ECF No. 1.) On May 25, 2018 the Court granted Plaintiffs 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 employces overtime wages as required by the FLSA, OMFWSA, and OPPA. (Compl. § 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. (/d. 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 shifts 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. (/d. 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.” (dat 18:12-17.) The total labor is the same whether the

employee chooses the first or second schedule. (id, at 19:24-20:5.) Plaintiff and the other non- managerial oilfield operations employees regularly work more than forty hours per week. (See é.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. (Id.) 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 4 non-managerial oilfield operations employee for Defendant, “i]s 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 J ones, 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 range of fluctuation. One day we may have nothing to do, but the next time we [are] having to work an extreme

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.” (Ud. 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 Agreement refers to this payment schedule as the “Belo bi-weekly pay schedule.” Ud.) Further, the Terms of Agreement states there will be “additional overtime after 60 hours.” (/d.) 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 7 this case. As such, the Court will only address base pay, stage pay and quarterly bonuses, the payments in many hours they worked that week. (Leeper Decl. 1 17, ECF No. 60-1 .)

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.” Jd (emphasis added). The parties agree that Defendant’s hon-management oilfield operations employees work irregular hours ranging above and below forty hours per week. (See Pl.’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. (Pl.’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. (/d.) (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 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. (Pl.’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 employees 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 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 “[ils 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 “[rlight.” (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 Ti echs., Inc., 273 F, Supp. 3d 946, 953 (N.D. 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 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 4.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 requirement 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 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 Plaintiffs 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 “[c]ourts have uniformly held that Ohjo’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 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 Plaintiff's 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.

W-~ (4-\O19 Si = 5 DATE ED . SARGUS, JR. UNITED STATES DISTRICT JUDGE