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Metro v. Clean Harbors Surface Rentals USA, Inc.

United States District Court, D. Massachusetts

September 11, 2019

CHAD ROMERO, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
CLEAN HARBORS SURFACE RENTALS USA, INC., Defendant.

          MEMORANDUM AND ORDER

          Hon. Patti B. Saris Chief United States District Judge.

         This is a collective action under the federal Fair Labor Standards Act (“FLSA”) to collect unpaid overtime wages on behalf of solids control workers who worked for Defendant Clean Harbors Surface Rentals USA, Inc. (“Clean Harbors”). On March 21, 2019, the Court issued a Memorandum and Order (“March 2019 Order”) denying Clean Harbors' motion to dismiss for failure to join a required party and granting Plaintiff Chad Romero's (“Romero”) motion to conditionally certify a collective action under the FLSA. The Court conditionally certified the following collective action group:

All solids control workers employed by, or working on behalf of, Clean Harbors during the past 3 years who were classified as independent contractors and paid a day rate.

         Clean Harbors now moves for “clarification” of the March 2019 Order, requesting the Court expressly state that any solid control workers who signed arbitration agreements are not part of the group, meaning they will not receive notice of the FLSA collective action nor will they be allowed to opt-in to the action. Clean Harbors also seeks a protective order prohibiting Romero from inquiring as to the names and contact information of any such solids control workers. In the alternative, Clean Harbors asks the Court to stay the case and certify to the First Circuit the legal question of whether putative group members who signed arbitration agreements can receive notice in an FLSA collective action. Romero opposes all the relief sought by Clean Harbors. After hearing, Clean Harbors' motion is ALLOWED IN PART and DENIED IN PART (Dkt. No. 59).

         BACKGROUND

         As detailed in the March 2019 Order, Clean Harbors contracts with third-party staffing companies to supply solids control workers for certain projects. One of the third-party staffing companies used by Clean Harbors is Smith Management and Consulting, LLC (“Smith”). Smith provides its clients in the oilfield services industry, like Clean Harbors, with contractors, or “consultants, ” to work on oil and/or gas drilling operation sites throughout the country. Clean Harbors and Smith enter into consulting agreements which set the terms and conditions under which Smith supplies contractors to Clean Harbors' work sites.

         Meanwhile, Smith and its contractors enter into Master Service Agreements (“MSAs”) that fix the terms of their relationship. The MSAs incorporate by reference a Mutual Dispute Resolution Agreement and Waiver of Jury Trial (“Arbitration Agreement”), which is separately signed by Smith and its contractors. The Arbitration Agreements provide that “[a]ll disputes, claims or controversies . . . arising out of or relating in any way to the services or work [a solids control worker] seeks to perform or performs for or on behalf of [Smith] or for or on behalf of any client of [Smith]” shall be submitted to binding arbitration. Dkt. No. 61-5 ¶ 2. The claims that must be submitted to arbitration include “all claims arising under federal, state or local statutory or common law, ” specifically including those “for unpaid or withheld wages” and “any claim under any other laws governing compensation and overtime such as the [FLSA].” Id. ¶ 3. Further, the Arbitration Agreements provide that “there shall be no right or authority for any claims to be arbitrated on a class, mass or collective action basis.” Id. ¶ 9. Finally, the Arbitration Agreements state that any arbitration will be governed by the American Arbitration Association's Employment Rules and Mediation Procedures (“AAA Rules”).

         In total, 136 solids control workers that worked for Clean Harbors during the relevant period were supplied by Smith and signed Arbitration Agreements (“Arbitration Workers”). This motion concerns whether Romero may send notice of this FLSA collective action to the Arbitration Workers.

         ANALYSIS

         I. Merits

         a. Clarification or Reconsideration?

         The parties dispute whether the present motion should be treated as one for clarification or reconsideration of the Court's March 2019 Order. As Clean Harbors points out, the Court did discuss the effect of arbitration agreements at the hearing on Romero's conditional certification motion. See Dkt. No. 56 at 24:21-25:4 (“[W]e'd obviously have to exclude anybody who had a class waiver and an [arbitration] agreement . . .; but let's assume I just carve them out, although I'm not sure that applies to collective class actions . . . .”); Id. at 38:5 (“Right, and [solid control workers subject to arbitration agreements with class waivers] can't come here.”). And the parties agree that a solids control worker subject to a valid, enforceable arbitration agreement may not join this collective action. See Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612, 1632 (2018) (enforcing arbitration agreement in FLSA collective action). Therefore, the Court clarifies that the collective action group certified by the March 2019 excludes solids control workers subject to valid, enforceable arbitration agreements. The notice materials should include the following revised group definition, which has been agreed upon by the parties:

All Solids Control Technicians employed by, or working on behalf of, Clean Harbors during the past 3 years who were classified as independent contractors and paid a day rate, excluding any Solids Control Technicians who are bound by an enforceable arbitration agreement.

         But Clean Harbors' motion raises another related issue that was not squarely before the Court at the time of Romero's motion for conditional certification. The parties now contest whether the Arbitration Workers should receive notice of this collective action even though they ultimately may not be able to participate in the case because of their Arbitration Agreements. Although Clean Harbors did not press this issue in opposing Romero's conditional certification motion, the Court will nonetheless address it now that it has been raised. See Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 81 (1st Cir. 2008) (noting that district courts have “substantial discretion and broad authority” in addressing motions for reconsideration); cf. Deutsche Bank Nat'l Tr. Co., v. Pike,916 F.3d 60, 67 (1st ...


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