Murphy v. Labor Source, LLC

• Decision Date: 08 February 2022
• Docket Number: 19-cv-1929 (ECW)
• Parties: MARCQUISE MURPHY and RATANYA ROGERS, individually and on behalf of all others similarly situated, Plaintiffs, v. LABOR SOURCE, LLC d/b/a CATSTAFF d/b/a ONE SOURCE STAFFING AND LABOR, and BLUSKY RESTORATION CONTRACTORS, LLC, Defendants.
• Court: U.S. District Court — District of Minnesota

MARCQUISE MURPHY and RATANYA ROGERS, individually and on behalf of all others similarly situated, Plaintiffs, v. LABOR SOURCE, LLC d/b/a CATSTAFF d/b/a ONE SOURCE STAFFING AND LABOR, and BLUSKY RESTORATION CONTRACTORS, LLC, Defendants.

No. 19-cv-1929 (ECW)

United States District Court, D. Minnesota

February 8, 2022

ORDER

ELIZABETH COWAN WRIGHT, United States Magistrate Judge.

This matter is before the Court on Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice Pursuant to 29 U.S.C. § 216(b) (Dkt. 132); Plaintiffs' Motion to Strike or Void Defendants' Rule 68 Offer (Dkt. 152); and Defendants' Motion to Dismiss the Claims of Plaintiff Ratanya Rogers (Dkt. 158). The parties have consented to the jurisdiction of this Court pursuant to 28 U.S.C. § 636 and Rule 73 of the Federal Rules of Civil Procedure.

I. PLAINTIFFS' MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE (DKT. 132)

A. Factual Background

1. General Background

On July 23, 2019, Plaintiffs Marcquise Murphy (“Murphy”) and Ratanya Rogers (“Rogers”) (collectively, “Plaintiffs”) initiated this putative collective and class action on behalf of themselves and other similarly situated individuals who have worked for Defendants Labor Source, LLC doing business as One Source Staffing and Labor (“Labor Source” or “One Source”) and BluSky Restoration Contractors, LLC (“BluSky”) (collectively, “Defendants”) as non-exempt manual laborers. (Dkt. 1 ¶ 1.) Plaintiffs and the putative class and collective members “challenge[d] Defendants' minimum wage and overtime violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (‘FLSA'), as well as the wage, hour, labor, and other applicable laws of the State[ ] of Minnesota, including the Minnesota Fair Labor Standards Act, Minn. Stat. § 177.21 et seq. (‘MFLSA') and the Minnesota Payment of Wages Act, Minn. Stat. § 181.01 et seq. (‘MPWA').” (Id.)

“BluSky provides commercial, industrial, governmental, residential, and multifamily restoration, renovation, environmental, and roofing services across the United States....” (Dkt. 136-1 at 1.)

Labor Source hires employees to serve as unskilled and semi-skilled temporary laborers, most commonly in the construction, manufacturing, restoration, and disaster recovery industries. (Dkt. 170 ¶ 3.) Labor Source provides temporary labor across the country, and contracts with its clients to provide temporary labor on a project-by-project basis. (Dkt. 170 ¶¶ 2-3.) By way of example, on or about September 25, 2013, One Source and BluSky (as the customer) entered into a rate agreement (“Rate Agreement”) setting the billing rate for the workers supplied by One Source, which included the rates for general labor, leads, vans, worker per diem (including for hotels), worker travel time, and worker stand down time. (Dkt. 136-3.) In addition, the Rate Agreement provided as follows:

The billing rate above includes all wages, worker's compensation premiums, unemployment Insurance, payroll taxes, and all other employer burdens; recruiting, administration, payroll funding, and liability insurance (...no hidden costs!).

Customer acknowledges that they have care, custody, and control of the job site. Customer agrees to comply with all applicable laws, regulations, and ordinances relating to health and safety, and agrees to provide any site/task specific training and/or safety devices and protective equipment necessary or required by law.

Customer agrees to indemnify and hold harmless One Source Staffing and Labor for any and all claims, damages or penalties, together with reasonable attorneys' fees, arising out of any violation of: (a) the Occupational Safety and Health Act (OSHA) of 1970, or any similar state law with respect to workplaces or equipment owned, leased, or supervised by Customer and to which employees are assigned; or (b) any prevailing wage law requirement (e.g. Davis-Bacon Act of 1931, etc.) that was not disclosed in writing by Customer to One Source Staffing and Labor prior to the commencement of work on such project. In the event that a prevailing wage law requirement exists with respect to any particular project, Customer shall notify One Source Staffing and Labor in writing of such requirement and the applicable billing rates will be adjusted accordingly.

Customer will not, without prior written consent of One Source Staffing and Labor, utilize One Source Staffing and Labor employees to operate machinery, equipment or vehicles. Customer agrees to defend, indemnify and hold harmless One Source Staffing and Labor from any claims and/or liability arising out of the unauthorized operation of machinery, equipment or vehicles by One Source Staffing and Labor employees.

Commencement of work by dispatched workers, or customer's signature on work ticket serves as confirmation of Customer's agreement to conditions of service listed on back of work ticket.

Customer agrees not to place workers in a supervisory position. Customer agrees that worker shall not work more than twelve (12) feet above the ground, six (6) feet below the ground, or on or in any non-permanent, nonenclosed structure. Customer agrees to supervise workers at all times. Billable time begins at the time workers report to the workplace per your request. Jobs must be cancelled a minimum of one hour prior to start time to avoid minimum billing.

We guarantee our workers will satisfy you or the first two hours are on us. If you are not satisfied with the workers, call us within the first two hours and we will replace them free of charge.

Overtime will be billed at one and one-half times the regular billing rate for all time worked over forty hours in a pay period. At your request, we will be happy to substitute workers to avoid overtime situations.

One Source Staffing and Labor's work week begins on Sunday and ends on Saturday.

Invoices are due 30 days from date of invoice (unless other arrangements have been made).

Rates are subject to change at any time upon thirty days written notice unless you are on a Rate Guarantee Agreement for a period of twelve months.

Customer may hire worker for no fee after individual has completed 960 hours of billing. If hired before 960 hours of billing, there will be a pro-rated fee calculated at $5.00 per hour for every remaining hour to cover administrative and recruiting fees.

One Source Staffing and Labor reserves the right to waive any fee in connection with the hiring process.

Customer shall not, directly or indirectly, either by itself or through any other temporary staffing agency, solicit, hire, employ or endeavor to employ One Source Staffing and Labor's workers if such worker has performed services at Customer's job site while employed by One Source Staffing and Labor. Each breach of this covenant shall result in Customer paying One Source Staffing and Labor an amount equal to the hours worked by each such employee multiplied by the stated hourly rate contained herein, plus $1, 000 per incident.

(Id.)

As a temporary staffing company, the main source of Labor Source's revenue is the rate paid by its clients for each hour worked by Labor Source employees. (Dkt. 170 ¶ 50.)

2. Plaintiff Marcquise Murphy

Murphy asserts in his Declaration as follows: that he was employed by One Source and BluSky Restoration as a manual laborer and non-commercial driver from approximately August 2017 through January 2018 for the Weyerhaeuser remediation project in Minnesota (“Weyerhaeuser Project”). (Dkt. 137-8 ¶ 2.) Labor Source asserts that Murphy was hired on August 28, 2017, and started working on the Weyerhaeuser Project on August 29, 2017. According to Labor Source's records, Murphy's final day of work was September 2, 2017, and he has not worked for Labor Source since that date. (Dkt. 170 ¶ 51.) Murphy was classified as non-exempt and was paid on an hourly-rate basis at $10 per hour. (Dkt. 137-8 ¶ 3.) Murphy worked, on average, approximately 1516 hours per day on the Weyerhaeuser Project. (Id. ¶ 4.) At a minimum, he worked 12 hours per day and at most he worked upwards of 18-19 hours per day. (Id.) He and others worked six-to-seven days per week until the project was finished. (Id.) Murphy worked more than 40 hours per week virtually every week, sometimes upwards of 80-90 hours per week. (Id.)

Murphy claimed that his primary job duties included providing manual labor services, remediation work, driving/transporting crew members to and from the worksite, and logging/stocking materials. (Id. ¶ 5.)

With respect to timekeeping, Murphy claims as follows: BluSky had a daily timekeeping system that consisted of paper timesheets. (Id. ¶ 6.) BluSky, through their project manager and/or team leads over the Weyerhaeuser Project, would uniformly fill out the time sheets for the workers before the workers even saw the timesheets, stating the workers arrived at a certain time and stopped working at a certain time. (Id.) BluSky would then require the workers to sign their name to the daily time sheet, even though the times were not accurate. (Id.) BluSky's team leads threatened to withhold pay unless workers signed their names to the inaccurate daily time sheets. (Id.) By way of example, Murphy asserts that during the Weyerhaeuser Project, laborers would regularly work upwards of 15-16 hours per day, however, BluSky would only show that the laborers worked approximately 11 or 12 hours per day and also inaccurately reflected that laborers received fully off-duty meal breaks, which also resulted in him losing dozens of hours' worth of compensable work time and hundreds of dollars in overtime wages every week. (Id. ¶ 7.) BluSky's project manager would then submit those fabricated and inaccurate time sheets to One Source, so that One Source could pay the workers for the...