Ford v. WSP USA, Inc.

Background

Harold Ford asserted claims under the Fair Labor Standards Act (FLSA), the federal overtime law, against WSP USA, Inc. He sought to proceed on behalf of himself and other similarly situated health, safety, and environmental workers who chose to join the case. The complaint alleged that WSP willfully violated the FLSA by failing to pay workers one and one-half times their regular pay rate for work exceeding 40 hours in a week.

WSP had engaged Quality Project Solutions Inc. (QPS) to provide health, safety, and environmental personnel. QPS hired Ford and assigned him to work on WSP projects. WSP paid QPS a flat daily amount for Ford’s work, while QPS initially paid Ford $400 per day and later paid him $420 per day. The parties disputed several facts, including who controlled Ford’s schedule, who paid for his training, how much WSP supervised his work, and whether WSP knew that QPS paid him by the day.

WSP’s Partial Summary-Judgment Motion

WSP moved for partial summary judgment on whether any FLSA violation was willful. Summary judgment is a decision without a trial that is appropriate only when the evidence shows no genuine dispute about facts that could affect the outcome.

The court denied WSP’s motion. First, the court held that deciding willfulness was premature because the court had not yet determined whether WSP violated the FLSA. Second, the court held that disputed facts could affect whether WSP and QPS were joint employers and whether WSP knowingly or recklessly disregarded its FLSA obligations.

The court explained that willfulness requires proof that an employer knew its conduct violated the FLSA or recklessly disregarded that possibility. It also explained that joint-employer status depends on the economic reality and totality of the circumstances, including control over hiring, firing, schedules, working conditions, pay, records, and the worker’s day-to-day activities. The court identified disputed facts concerning WSP’s control over health, safety, and environmental workers, Ford’s training, his schedule, his interaction with WSP employees, and WSP’s knowledge of his daily pay.

Conditional Certification

Ford moved for conditional certification of an FLSA collective. At this preliminary stage, a plaintiff must make a modest factual showing that the plaintiff and potential opt-in workers were subject to a common policy or plan that may have violated the FLSA. Conditional certification allows notice to be sent; it does not finally decide whether the workers are similarly situated or whether the alleged FLSA violation occurred.

The court conditionally certified a collective consisting of health, safety, and environmental workers who were hired by QPS; received a flat daily rate regardless of hours worked; were required or permitted to work overtime without compensation; worked for WSP during the prior three years; were characterized as independent contractors; and were never guaranteed a salary.

The court limited the collective to QPS-hired workers because Ford provided no evidence that the five other staffing companies used the same flat-rate, no-overtime pay policy. The court did not conditionally certify workers hired through those companies.

Notice and Tolling Rulings

The court approved Ford’s proposed notice procedures, including distribution by mail, email, and text message. Ford could make a follow-up telephone call if all forms of notice were returned as undeliverable and no forwarding information was available. The court also approved sending a reminder notice halfway through the notice period.

The court approved the proposed notices with all of WSP’s requested changes except the proposed change to the collective’s time period. Because willfulness remained disputed, the court allowed notice to workers whose unpaid-overtime claims began within the prior three years rather than limiting the notice period to two years.

The court granted in part Ford’s request to pause the FLSA limitations period. The limitations period was paused from March 26, 2021, when Ford filed the certification motion, through October 14, 2021, the date of the opinion. The court declined to extend that pause through the notice period.

Disposition

The court denied WSP’s motion for partial summary judgment. The opinion’s opening states that Ford’s motion for conditional certification was granted in part, while the conclusion states that the motion was granted. The court nevertheless limited the certified collective as described above, approved the notices in part, and granted the equitable-tolling request in part. The court directed WSP to provide contact and employment information for people in the conditionally certified collective and directed the parties to propose next steps and deadlines.