In a decision on January 31, 2022, the district court for the Western District of Pennsylvania conditionally certified a collective action on the part of employees against their employer for a violation of the Fair Labor Standards Act of 1938 (FLSA).

The FLSA is the federal law that establishes the minimum wage, overtime pay rates, recordkeeping requirements, and youth employment standards. Generally, all the time an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace constitute their work hours for payment purposes. Additionally, overtime is any amount of time an employee works over the normal 40 hours a week. When the FLSA was enacted, the Department of Labor created the Wage and Hour Division to administer and enforce the provisions of the law. Under the FLSA, employees are allowed to bring collective actions against their employer, which differ from traditional class actions in several procedural respects. Because the statute itself doesn’t specify those procedures, the courts have come up with a two-step process by which to certify collective actions.

The first stage of collective action certification requires that the plaintiffs show that there is a connection between how the employer’s policies and procedures affected the individually named plaintiff and how the policies affected all the other prospective collective action members. In other words, the court, at this stage, determines whether other employees are situated similarly to the named plaintiff. If plaintiffs are granted the conditional certification at this stage, they are allowed to then notify the potential collective action members of the suit. At the second stage, following discovery and usually prompted by a motion to decertify, courts engage in a more thorough inquiry to determine if the named plaintiff and the opt-in plaintiffs are similar enough to allow the matter to proceed to trial on a collective basis.

In our suit against Evolution Well Services Operating, LLC, plaintiffs and members of the collective action would work two-week long “hitches” during which time they would live in employee-controlled housing, working 12-hour shifts at the remote work site. In addition to the time spent working at the site, however, they had been required to get themselves to the employee-controlled housing at the beginning of a hitch, to attend meetings before and after leaving the employer housing for the work site, and to spend an average of one and a half hours travelling before and after each 12-hour shift, for which they were not compensated. During the meetings, employees would be on calls and in meetings with supervisors, would have their temperature checked, and would sometimes be drug tested. They would also be performing work-related activities during transport to and from the job site on a daily basis. Plaintiffs argued that the policies regarding travel applied to all hitches employees, and therefore all hitch employees were similarly situated as required for conditional certification.

Evolution Well made several arguments against the plaintiffs’ assertions. One of these was that the travel from the employer housing to the worksite and back was a “normal incident” of the work. The court first explained that the regulations promulgated by the Department of Labor consider travel incident to work to be the commute an employee makes between work and home on a regular workday. The court found that employees clearly were not traveling to and from home every day and that the precedent cited by Evolution Well was either factually distinguishable or legally irrelevant, so employees’ travel time could potentially be legally compensable. Evolution Well also argued that different employees performed different activities and not all employees might be performing indispensable and integral activities on the way to and from the work site. The court rejected this argument, finding that the activities conducted by employees during this time could be indispensable and integral and that this defense did not prevent the court from granting conditional certification.

Evolution Well further argued that the proposed collective action included some employees that weren’t owed damages because some employees had been compensated for travel time. The court said that it was unclear at this stage which employees were or were not compensated by the policies and so the court would not prevent the collective action from going forward on that basis.

Finally, the plaintiffs requested employee names, job titles, addresses, email addresses, mobile phone numbers, employment dates, dates of birth, and the last four digits of the employees’ SSNs and argued that email and text message notice should be allowed. Evolution Well requested the court require the parties to meet and confer regarding the scope of employee information provided and the notice plan. The court granted the plaintiffs’ request almost entirely, excluding only the last four digits of the employees’ social security numbers. Importantly, the court and that, in this day and age, distributing notice by text and email was appropriate.

The court’s ultimate conclusion in the January 31 decision was that the plaintiffs had put forth enough evidence in favor of conditionally certifying the collective action and so had passed through stage one of the FLSA collective action procedures and can move on to stage two. This is a huge step forward for the plaintiffs and other employees toward holding Evolution Well responsible and being paid the money they earned.

Blog Post by Elizabeth Pollock-Avery and Lucia Romani.


The Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq.

Brian J. Malloy, Employment: Navigating The “Collective Action” In Federal Court, Plaintiff Magazine, Nov. 2013

29 C.F.R. § 785.39

Copley v. Evolution Well Services Operating, LLC, No. 20-cv-1442, slip op., 2022 WL 295848 (W.D. Pa. Jan. 21, 2022)