United States District Court, D. Massachusetts
CHAD ROMERO, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
CLEAN HARBORS SURFACE RENTALS USA, INC., Defendant.
MEMORANDUM AND ORDER
B. SARIS, CHIEF UNITED STATES DISTRICT JUDGE
Chad Romero (“Romero”) brings this action against
Defendant Clean Harbors Surface Rentals USA, Inc.
(“Clean Harbors”) under the federal Fair Labor
Standards Act (“FLSA”) to collect unpaid overtime
wages on behalf of himself and other similarly situated
individuals who worked for Clean Harbors. Two motions are
before the Court: (1) Clean Harbors' motion to dismiss
for failure to join a required party under Rule 19 of the
Federal Rules of Civil Procedure, and (2) Romero's motion
to conditionally certify a collective action under the FLSA.
hearing, the Court DENIES Clean Harbors'
motion to dismiss (Dkt. No. 38) and ALLOWS
Romero's motion for conditional certification (Dkt. No.
all reasonable inferences are drawn in favor of the
non-moving party, the Second Amended Complaint alleges the
following facts, many of which are disputed.
worked for Clean Harbors from July 2016 to February 2018. He
was a solids control technician, operating Clean Harbors'
equipment to separate particles and debris from fluids used
for oil and natural gas drilling so the fluids could be
reused in the drilling process.
Harbors is headquartered in Norwell, Massachusetts and
operates throughout the United States, Canada, and Mexico. It
provides environmental, energy, and industrial services to
companies in the chemical, energy, and manufacturing markets,
including the oil and natural gas industry. Clean Harbors
contracts with third-party staffing companies to supply
workers for certain projects.
regularly worked over 40 hours a week for Clean Harbors.
Rather than pay overtime, Clean Harbors classified employees
like Romero as independent contractors and paid them a daily
rate, or a “day rate, ” with no overtime pay.
Romero was paid $275 per day when he started working for
Clean Harbors and $325 per day by the time he left,
regardless of how many hours over 40 he worked in a given
week. He and other day-rate workers often worked at least 12
hours a day, seven days a week-or more than 84 hours per
alleges that his classification as an independent contractor
was improper because, in fact, Clean Harbors was his
employer. Clean Harbors directed his rate of pay; he reported
directly to Clean Harbors, which coordinated his work and set
his schedule; Clean Harbors dictated his work locations; he
was required to follow Clean Harbors' policies and
procedures; and Clean Harbors prohibited him from working for
other employers or subcontracting his work for Clean Harbors.
Although Clean Harbors “required Romero to go through a
contracting company to be paid, ” information related
to his pay rate is reflected in its payroll records. The same
is true of all other solids controls workers who worked for
Harbors not only knew its workers put in more than 40 hours
per week, but it also required them to do so. Clean Harbors
failed to pay these workers overtime despite knowing that
they were not exempt from the FLSA's overtime provisions.
initial complaint was filed in this action in April 2018 and
an amended complaint was filed in August 2018, both by
another Clean Harbors solids control worker, Trent Metro
(“Metro”). The initial and amended complaints
named additional entity defendants from the same corporate
family as Clean Harbors. In August 2018, Metro voluntarily
dismissed from the case the other entity defendants, leaving
Clean Harbors as the only defendant. In September 2018, due
to the discovery of an arbitration agreement in his
employment contract, Metro requested that his individual
claims be dismissed from the action and that he be
substituted as named plaintiff. On September 13, 2018, with
leave of the Court, Romero filed the Second Amended
Complaint, which substituted him as named plaintiff in the
place of Metro.
November 30, 2018, Clean Harbors moved to dismiss the Second
Amended Complaint pursuant to Federal Rule of Civil Procedure
19 for failure to join a required party. On the same day,
Romero moved to conditionally certify an FLSA collective
action. On December 21, 2018, the parties opposed each
other's motions, and, on January 4, 2019, the parties
replied in support of their respective motions. A hearing was
held on both motions on January 8, 2019.
first step in a Rule 19 analysis is to determine whether an
absent party is a “required party” under Rule
19(a). Bacardi Int'l Ltd. v. V. Suárez &
Co., 719 F.3d 1, 10 (1st Cir. 2013). There are three
ways to qualify as required party: (1) if, in the party's
absence, the court cannot afford complete relief among the
existing parties; (2) if disposing of the case without the
absent party will, as a practical matter, impair or impede
the absent party's ability to protect a claimed interest;
or (3) if deciding the case in the party's absence will
leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations because of a claimed interest in the case.
Fed.R.Civ.P. 19(a). The burden is on the party raising a Rule
19 defense to show that the absent party is needed for a just
adjudication. See In re Veluchamy, 879 F.3d 808, 819
n.4 (7th Cir. 2018).
Court finds that the absent party is a required party, it
must then determine whether joinder is feasible. See
Fed.R.Civ.P. 19(b). If joinder is not feasible, the Court
must next determine “whether in equity and good
conscience the action should proceed among the parties before
it, or should be dismissed.” Picciotto v.
Cont'l Cas. Co.,512 F.3d 9, 18 (1st Cir. 2008)
(quoting Fed.R.Civ.P. 19(b)). In other words, the Court must
determine whether the absent party is
“indispensable” such that there can be “no
viable lawsuit without the missing party.” Id.
at 20. Under Rule 19(b), the Court considers four factors in
making this assessment: (1) the extent to which a judgment
rendered in the party's absence might prejudice that
party or the existing parties; (2) the extent to which any
prejudice could be lessened or avoided by protective
provisions in the judgment, shaping the relief, or other
measures; (3) whether a judgment rendered in the party's