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Romero v. Clean Harbors Surface Rentals USA, Inc.

United States District Court, D. Massachusetts

March 21, 2019

CHAD ROMERO, Individually and on Behalf of All Others Similarly Situated, Plaintiff,




         Plaintiff 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.

         After hearing, the Court DENIES Clean Harbors' motion to dismiss (Dkt. No. 38) and ALLOWS Romero's motion for conditional certification (Dkt. No. 40).


         When 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.

         I. Parties

         Romero 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.

         Clean 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.

         II. Employment Relationship

         Romero 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 week.

         Romero's 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 Clean Harbors.

         Clean 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.

         III. Procedural History

         An 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.

         On 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.

         Motion to Dismiss

         I. Legal Standard

          The 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).

         If the 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 ...

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