Landry v. Swire Oilfield Services, L.L.C. (252 F. Supp. 3d 1079, 2017)

MEMORANDUM OPINION AND ORDER

James 0. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Plaintiffs’ Motion for Conditional Certification, Hoffmann-La Roche Notice, and Expedited Ruling, filed January 13, 2017 (Doc. 35)(“Motion”). The Court held a hearing on March 23, 2017. The primary issues are: (i) whether the Court should conditionally certify this case as a collective action pursuant to § 216(b) of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”), with respect to two classes of employees who worked for Defendants Swire Oilfield Services, L.L.C. and Swire Water Solutions, Inc. (collectively “Swire Oil”) throughout the United States of America within the last three years, he., (a) oilfield manual laborers whom Swire Oil paid on a salary basis without overtime (the “Salary Class”), and (b) oilfield manual laborers whom Swire Oil paid according to the fluctuating workweek method (the “FWW Class”); (ii) whether the Court should approve the Plaintiffs’ Proposed Notice and Consent Form, filed January 13, 2017 (Doc. 35-l)(“Notiee and Consent Form”); (iii) whether the Court should authorize two mailings of the Notice and Consent Form to all potential Plaintiffs via regular mail, email, and text message and allow class members to execute their consent forms electronically; and (iv) whether the Court should order Swire Oil to produce all potential Plaintiffs’ names and known addresses, cellular telephone numbers, and email addresses, so that notice may be implemented. The Plaintiffs request that the Court expedite its consideration of the Motion.

The Court will grant the requests in the Motion. Specifically, the Court will conditionally certify as a collective action the Salary Class and the FWW Class. The Court approves the proposed Notice and Consent Form, and will authorize notice to all potential Plaintiffs via regular mail, email, and text message. The Court will also require that Swire Oil produce the potential Plaintiffs’ names and known contact information so that notice may be implemented as the Plaintiffs request.

FINDINGS OF FACT

The central issue that the Motion presents is whether the Court should conditionally certify this case as a collective 'action pursuant to FLSA § 216(b). See Motion at 1. A | 216(b) certification decision turns on whether a proposed class is comprised óf “similarly situated” employees. Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001). The Court’s determination as to a particular group of employees’ similarity is a finding of fact, see Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 534 (3d Cir. 2012); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008), which the Tenth Circuit reviews for clear error, see Colony Ins. Co. v. Burke, 698 F.3d 1222, 1238 n.21 (10th Cir. 2012)(citing Fed. R. Civ. P. 52(a)(6); Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). Here, both the Plaintiffs and Swire Oil have submitted briefings on the issue of conditional certification under § 216(b). See Motion; Defendant’s [sic] Response Opposing Plaintiffs’ Motion for Conditional Certification, Hojfmann-La Roche Notice, and Expedited Ruling at 1, filed January 27, 2017 (Doc. 37)(“Re-sponse”); Plaintiffs’ Reply Brief in Support of Their Motion for Conditional Certification, Hoffmanrir-La Roche Notice, and Expedited Ruling at 1, filed February 2, 2017 (Doc. ,44)(“Reply”). In determining whether to grant conditional certification, the Court has carefully considered all factual assertions that these briefings raise. The Court accepts some factual assertions and rejects others. The Court also libei’ally judicially notices adjudicative, background facts. See Fed. R. Evid. 201.

The Court’s findings of fact are authoritative only on.the question of conditional certification under § 216(b). At the “notice stage,” before the completion of discovery, the Court uses a lenient “similarly situated” standard, . which “requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Thiessen v. General Electric Capital Corp., 267 F.3d at 1102 (brackets, citations, and internal quotation marks omitted). At this stage, the Court “does not weigh the evidence, resolve factual disputes, or rule on the merits” of the plaintiffs’ claims. Greenstein v. Meredith Corp., 948 F.Supp.2d 1266, 1267 (D. Kan. 2013)(Robinson, J.)(citation omitted); Certification at this initial stage is thus conditional; after the completion of discovery, the Court “makes a second determination, utilizing a stricter standard of ‘similarly situated.’” Thiessen v. General Electric Capital Corp., 267 F.3d at 1102-03 (citation omitted). Accordingly, after discovery concludes, the parties may relitigate the factual findings that the Court presently makes for purposes of conditional certification.

1.Overview of the Parties.

1. Swire Oil provides oilfield services, including oilfield -fluid management, to drilling companies around the world, “including virtually every major oil play in the State of New Mexico and the United States.” Original Complaint, Collective Action, Class Action, and Jury Demand ¶ 29, at 6, filed June 21, 2016 (Doc. ^(“Complaint”).

2. To assist with the drilling process, Swire Oil employs oilfield manual laborers, i.e„ equipment operators, to rig, monitor, and maintain the water transfer and chemical blending equipment that if supplies. See Complaint ¶ 30, at 6.'

3. During.the last three years, Plaintiffs Eddie Landry, Mario Constancio, Jr., and Mark Tamayo worked as operators of the equipment that Swire Oil supplied for its clients’ hydraulic fracturing (“fracking”) .jobs at well sites in the United States. See Complaint ¶¶ 9-11, at 3. See also Motion at 2 (specifying that the Plaintiffs worked on fracking jobs).

4. Tamayo worked as an operator at well sites located in New Mexico. See Complaint ¶ 11, at 3.

5. The Plaintiffs seek.to represent a nationwide class comprised of all. current and former Swire Oil operators “who were paid on a salary basis without overtime in the last three years,” he., the “Salary Class.” Complaint ¶ 54, at 9.

6. The Plaintiffs also seek to represent a nationwide class comprised of all current and former Swire Oil operators “who were paid. under the fluctuating work week method during the last three years,” Le., the “FWW Class.” Complaint ¶54, at 9.

7. Finally, Tamayo seeks to represent á class of current and former Swire Oil operators “who worked in New Mexico during the last three years and who were paid under the fluctuating workweek method,” he., the “New Mexico Class.” Complaint ¶ 56, at 10.

8. Thus far, forty-six current and former Swire Oil operators have noticed their written consent join in this lawsuit. See Motion at 1 (citing Plaintiffs’ Notice of Filing Consent at 1-2, filed June 27, 2016 (Doc. 8)(noticing forty individuals’ consent to join, including: Bradley Ramsey; Chris Weller; Christopher Wells; Clay Sander-ford; David Carroll; David Crager; Duane Burleson; Eric Adkison; Eric Kelly; Ernbie Salinas; Fidencio- Vasquez; Garrekk Singleton; George Bryant; George Murphy; Hau Bui; Hugo Valdez; Isaac Ruiz; Ivan Rizo; Jeremy Warren; Jiminsky Evans; John Moy; Jose Gonzalez; Juan Silva; Julio Ramirez; Harvey Keith Cook; Logan Byerly; Louis Walton; Martin Mena; Michael Sutton; Mikah White; Nathan Calderon; Roel Acosta; Sammy Rodriguez; Santos De La Cruz; Sergio Rizo; Shawn Horn; Travis Mearns; Ulysses Dozier; Walter Glasier; and Wayne Hrozek); Plaintiffs’ Notice of Filing Consent at 1, filed August ii, 2016 (Doc. ll)(Jessie Brown); Plaintiffs’ Notice of Filing Consent at 1, filed September 16, 2016 (Doc. 23)(Michael Musch); Plaintiffs’ Notice of Filing Consent at 1, filed-November 9, 2016 (Doc. 30)(Johnny McKeever); Plaintiffs’ Notice of Filing Consent at 1, filed December 21, 2016 (Doc. 32)(Sergio Perales); Plaintiffs’ Notice of Filing Consent at 1, filed February 24, 2017 (Doc. 49)(Phillip Hunter and Christopher Gullet*)).

2. Swire Oil Operators’ Job Descriptions.

9.Although Swire Oil hired operators such as the Plaintiffs under various job titles, all operators had essentially the same primary duties: rigging up, monitoring, maintaining, and rigging down water transfer and chemical blending equipment at oil well sites. See Declaration of Eddie Landry ¶2, at 1 (executed January 11, 2017), filed January 13, 2017 (Doc. 35-4)(“Landry Decl.”)(stating that duties included “rig[ging] up jobs,” “servicing,” and “maintaining fluid transfer equipment’’); Declaration of Michael Sutton ¶2, at 1 (executed January 11, 2017), filed January 13, 2017 (Doc. 35-5)(“Sutton Decl.”)(stat-ing that he would “rig up jobs,” “monitor[ ] water tank levels,” and “rig down equipment”); Declaration of Isaac Ruiz ¶ 2, at 1 (executed January 13, 2017), filed January 13, 2017 (Doc. 35-6)(“Ruiz Decl.”)(“rigging Up and rigging down jobs” and “maintenance on wellsite equipment”); Declaration of Roel Acosta ¶ 2, at 1 (executed January 12, 2017), filed January 13, 2017 (Doc. 35-7)(“Acosta Decl.”)(“maintaining water transfer equipment,” “rigging up and down jobs,” and “monitor[ing] water levels”); Declaration of Juan Silva ¶ 2, at 1 (executed January 12, 2017), filed January 13, 2017 (Doc. 35-8)(“Silva Decl.”)(“main-taining water transfer or chemical blending equipment,” “rigging up and down jobs,” and “mak[ing] sure equipment was well kept and ready for use”); Declaration of Mario Constancio ¶2, at 1 (executed January 12, 2017), filed January 13, 2017 (Doc. 35-9)(“ConstanciO Decl.”)(“maintain-ing water and fluid transfer equipment,” “rigging up and rigging down jobs,” and “mak[ing] sure equipment was well kept and ready for use”); Declaration of Harvey Keith Cook ¶ 2, át 1 (executed February 10, 2017), filed February 10,2017 (Doc. 44-l)(“Cook Decl.”)(“maintaining fluid transfer equipment”).

10. All operators’ positions were “physically intense,” Landry Decl. ¶ 2, at 1; Sutton Decl. ¶ 2, at 1; Ruiz Decl. ¶2, at 1; Acosta Decl. ¶ 2, at 1; Silva Decl. ¶ 2, at 1; Constancio Decl. ¶ 2, at 1; Cook Decl. ¶ 2, at 1, requiring them to continuously move around jobsites to “check the frack tanks, check the fluids, and make sure pressure was sustained in accordance with [Swire Oil] procedures,” Landry Decl. ¶2, at 1.

11. Swire Oil operators such as the Plaintiffs commonly worked “in excess of 12 hours a day, often more than 90 hours a week” and were “commonly called upon to work day after day with little rest.” Com-, plaint ¶ 31, at 6.

12. Swire Oil operators all worked long hours on extended rotations, resulting in many weeks where they logged substantial hours of overtime. See Landry Decl. ¶ 4, at 1 (“I regularly worked 100 hours or more hours per workweek,” “typically work[ed] 13 to 18 hours a day,” and “worked on a 20 days on, 10 days off schedule”); Sutton Decl. ¶ 4, at 2 (“I regularly worked 120 or more hours per workweek,” “typically work[ed] 14 to 16 hours a day but sometimes worked 24 hour or longer shifts,” and “worked on a 20 days on, 10 days off schedule”); Ruiz Decl. ¶ 4, at 2 (“I regularly worked 80 or more hours per workweek,” “typically work[ed] 12 to 16 hours a day,” and “worked on a 20 days on, 10 days off schedule”); Acosta Decl. ¶ 4, at 1 (“I regularly worked 120 or more hours per workweek,” “typically work[ed] 14 to 16 hours a day,” and “worked on a 20 days on, 10 days off schedule”); Silva Decl. ¶ 4, at 2 (“I regularly worked 120 or more hours per workweek,” “typically work[ed] 14 to 16 hours a day,” and “worked on a 20 days on, 10 days off schedule”); Constan-cio Decl. ¶ 4, at 2 (“I regularly worked 80 or more hours per workweek,” “frequently worked 21 hours a day,” and “worked on a 20 days on, 10 days off schedule”); Cook Decl. ¶ 3, at 1 (“I regularly worked 84 or more hours per workweek” and “would typically work 13 to 18 hours a day”).

13. Shifts at well sites began as early as 4:30 a.m. and often lasted until 7:30 p.m. or later. See Silva. Decl. ¶ 2, at 1.

14. Some operators’ extended shifts lasted up to 56 hours. See Sutton Decl. ¶ 2, at 1.

15. Swire Oil typically scheduled its operators to work continuously for three consecutive weeks, followed by one week off. See Landry Decl. ¶ 5, at 2; Sutton Decl. ¶ 5, at 2; Ruiz Decl. ¶ 5, at 2; Acosta Decl. ¶ 5, at 2; Silva Decl. ¶ 5, at 2; Constancio Decl. ¶ 5, at 2.

16. Swire Oil’s “schedules not only resulted in high numbei’s of overtime hours worked per week, they also cause[d] many workers’ salaries to dip below the minimum wage for all hours worked.” Motion at 3 (alteration added)(citing Ruiz Decl. ¶ 5, at 2; Earnings Statements for Isaac Ruiz at 1-2, filed January 13, 2017 (Doc. 35-2)(“Ruiz Paystubs”); Earnings Statement for Mario Constancio at 1, filed January 13, 2017 (Doc. 35-3)(“Constancio Pays-tub”)).

17. Operators in the proposed classes were lower-level employees and not managers; they reported to jobsites as Swire Oil instructed, followed relevant policies and procedures that pertained to the particular jobsite, and followed clients’ instructions regarding how work was to be performed. See Complaint ¶¶ 34-38, at 7. See also Landry Decl. ¶ 7, at 2 (“I did not have the authority to hire and/or fire any employees” and “did not make decisions .,. regarding how or when a job was to be performed,” but “instead reported to a job-site as [Swire Oil] instructed,” “followed [Swire Oil’s and its clients’] safety policies and procedures,” and “followed [clients’] instructions ... about how a job was to be performed”); Sutton Decl. ¶ 7, at 2 (same); Ruiz Decl. ¶ 7, at 2 (same); Acosta Decl. ¶7, at 2 (same); Silva Decl. ¶7, at 2 (same); Constancio Decl. ¶ 7, at 2 (same); Cook Decl. ¶ 6, at 2 (same).

3. Swire Oil’s Compensation Structures.

18. As of late 2013, Swire Oil classified “nearly all,” Motion at 4, operators as exempt from the FLSA’s overtime pay requirements, and paid them on a flat salary basis or on a salary basis with a day rate payment for each day spent in the field, see Complaint ¶¶ 33-39, at 6-7.

19. Swire Oil paid operators such as Landry under this compensation system. See Landry Decl. ¶ 5, at 2.

20. Several employees sued Swire Oil for using this system and, in response, Swire Oil changed some of its workforce to non-exempt status in late 2013 and early 2014. See Ruiz Decl. ¶ 5, at 2.

21. For most of 2014, Swire Oil’s “entry level, manual labor employees received hourly pay with overtime.” Motion at 4 (citing Ruiz Decl. ¶ 5, at 2).

22. Some job titles, however, remained misclassified as exempt. See Sutton Decl. ¶ 2, at 1.

23. Sutton, for example, performed identical manual labor duties when he was a water transfer “supervisor” as when he was a transfer “technician.” Sutton Decl. ¶ 2, at 1.

24. These operators, along with the operators that Swire Oil initially classified as exempt, constitute the Salary Class. See Motion at 4.

25. Beginning in late 2014, Swire Oil transitioned salaried operators — the same operators that it recently re-classified — off a flat salary basis, and paid them overtime under the FWW method. See Complaint ¶ 40, at 7; Motion at 4.

26. Among the operators that Swire Oil transitioned to the FWW method were Constancio, Tamayo, and Ruiz. See Complaint ¶ 40, at 7; Ruiz Decl. ¶¶ 4, 8, at 2.

27. Swire Oil compensated operators working in New Mexico, such as Tamayo, under the FWW method. See Complaint ¶ 42, at 8.

28. Several operators compensated under this method, such as Constancio and Ruiz, experienced numerous weeks in which their salaries fell below the $7.25 per hour minimum wage rate. See Con-stancio Paystub at 1; Ruiz Paystubs at 1-2.

29. Constancio, for example, was paid an hourly rate of $5.04 during the pay period beginning January 1, 2014. See Constancio Paystub at 1.

30. Ruiz was paid an hourly rate of $6.77 during the pay period beginning August 30, 2015, and an hourly rate of $6.35 during the pay period beginning December 6, 2015. See Ruiz Paystubs at 1-2.

31. Some operators “never received any notice at all that Swire changed their pay method.” Motion at 6.

32. Ruiz, for example, found out about the change when he received his first paycheck under the FWW method and complained to his manager that his paycheck was missing pay. See Ruiz Decl. ¶ 5, at 2.

33. Ruiz never received formal documentation explaining the change to the FWW method. See Ruiz Decl. ¶5, at 2.

PROCEDURAL BACKGROUND

In ruling on a collective action certification motion, the Court does not accept as true the facts alleged in the pleadings, but must find all facts bearing on the question of certification, even if those facts also bear on the merits of the substantive claims. The Court is cognizant that it must not decide the merits at this stage of the case and expressly does not decide the case’s merits. The above findings of fact are tentative and made solely to allow the Court to determine whether conditional certification under FLSA § 216(b) is appropriate. See Thiessen v. General Electric Capital Corp., 267 F.3d at 1102-03.

The Court will outline the basic allegations underlying the Plaintiffs’ case. The Court will then discuss the Motion and its responsive briefings. Finally, the Court will discuss the March 23, 2017, hearing that it held regarding certification. The Court will later make conclusions of law to rule on the Motion.

1.The Complaint.

1. On June 21,2016, the Plaintiffs commenced this suit as a proposed collective action pursuant to FLSA § 216(b) and' as a proposed class action pursuant to rule 23 of the Federal Rules of Civil Procedure. See Complaint ¶¶ 47-65, at 8-12.

2. With respect to the FLSA, the Plaintiffs bring this suit on behalf of-.two proposed classes: (i) the Salary Class, he., “[a]ll of Defendants’ current and former operators throughout the United States who were paid on a salary basis without overtime in the last three years”; and (ii) the FWW Class, ⅛ “[a]ll of Defendants’current and former operators throughout the United States who were paid under the fluctuating work week method during the last three years.” Complaint ¶ 54, at 9.

3. The Plaintiffs allege that the potential Salary Class -members are similarly situated to Landry “in that they share the same duties and were subject to Swire’s policies of misclassifying non-exempt employees- as salaried exempt,” and that the FWW Class members are similarly situated to Constancio and Tamayo “in that they share the same duties and were subject to Swire’s' polices of ,,. paying overtime under a non-compliant FWW system.” Complaint ¶ 49, at 9.

4. The Plaintiffs assert two causes of action against Swire Oil on behalf of the Salary Class and the FWW Class; (i) failure to pay overtime, in violation of FLSA § 207 (Count I), see Complaint ¶¶ 66-74, at 12-13; and (ii) failure to pay the minimum wage, in violation of FLSA § 206 (Count II), see Complaint ¶¶ 75-82, at 13-14. The Complaint indicates that the Plaintiffs will seek to certify Counts I and II as collective actions pursuant to FLSA § 216(b). See Complaint ¶ 74, at 13 (Count I); ⅛¶ 82, at 14 (Count II).

-5. As to the Complaint’s rule 23 class-action allegations, Tamayo asserts overtime claims under the New Mexico Minimum- Wage Act, N.M. Stat. Ann. ■§§ 50-4-1 to -30 (“NMMWA”), on behalf of the New Mexico Class, he., “[a]ll current and former operators of . Defendants who worked in New Mexico during the last three years and who were paid under the fluctuating workweek, method.” Complaint ¶ 56, at 10.

6.' The Complaint 'alleges .that the “FWW method-is illegal under New Mexico law,” because the NMMWA “requires payment of one and one-half times the employee’s regular rate for each hour worked per week over 40- hours.” Complaint ¶ 85, at 14 (citing N.M. Stat. Ann. § 50-4-22(D)).

7. The Complaint thus asserts a cause-of action against Swire Oil for failure to pay overtime, in' violation of NMMWA § 50-4-26(C)-(E) (Count III). See Complaint ¶¶ 83-88, at 14-15. The Complaint indicates that the Plaintiffs will seek to certify Count .III as a class action under rule 23. See Complaint ¶ 88, at 15. .

2. The Motion.

■8. On January 13, 2017, the Plaintiffs moved to conditionally certify this case as a collective action" pursuant to FLSA § 216(b). See Motion at 1. The Plaintiffs seek certification-- on behalf of themselves, and on behalf of all potential Salary Class and FWW Class members, including the forty-six individuals who have already noticed them written consent to join in this litigation should the Court certify it,as a §. 216(b) collective action. See Motion at 1.

9. The Plaintiffs attach a proposed Notice and Consent Form, and request that the Court authorize two mailings of that form to all potential Salary Class and FWW Class members by -regular mail, email, and text message to allow them an opportunity to join this litigation. See Motion at 1.

10. The Plaintiffs request, further, that the Court order Swire Oil to produce the potential Salary Class and FWW Class members’ names and known contact information, so that notice may be implemented in the manner that they propose. See Motion at 1,

11. The Court divides its discussion of the Motion into four sections. First, the Court reviews the Plaintiffs’ allegations-as to the illegality of Swire Oil’s salary and FWW compensation structures. Second, the Court discusses the Plaintiffs’ arguments regarding conditional certification under § 216(b)’s collective-action mechanism, specifically whether the proposed classes’ members are “similarly situated” as that section requires. Third, the Court reviews the Plaintiffs’ arguments regarding their proposed Notice and Consent Form. Fourth, and finally, the Court briefly considers the Plaintiffs’ request that the Court expedite its consideration of the Motion.

a. Swire Oil’s Compensation Structures.

12. The Plaintiffs argue that, as of late 2013, Swire Oil “illegally misclassified” nearly all of its oilfield manual laborers as exempt from the FLSA’s overtime requirements, and paid them on a salary basis. Motion at 4. According to the Plaintiffs, this classification was illegal, because the FLSA does not provide an overtime pay exemption for low-level field employees such as Swire Oil operators. See Motion at 4. '

13. The Plaintiffs contend that, beginning in late 2014, Swire Oil paid hourly workers overtime under the FWW method. See Motion at 4 (citing 29 C.F.R. § 778.114). The Plaintiffs aver that Swire Oil’s use of this compensation structure was illegal, because Swire Oil “failed to properly satisfy the requirements to utilize the fluctuating workweek method.” Motion at 4.

■ 14. Specifically, the Plaintiffs argue that “there was no clear mutual understanding] between [ ] Swire and its employees concerning the fluctuating workweek” method as the regulations governing the FWW method require. Motion at 5 (relying on 29 C.F.'R. § 778.114(a)(2)). The Plaintiffs reason that “there were numerous weeks when the salary of the Plaintiffs fell below the minimum wage rate” and that, accordingly, a clear mutual understanding as to Swire Oil’s FWW method was not possible, because it would be “contrary to law and public policy” for workers to' “agreetl to be paid less than the minimum wage for all hours worked.” Motion at 6 (relying ón Ruiz Paystubs at 1-2; Constancio Paystub at 1).

15. The Plaintiffs also contend that the “Plaintiffs and the FWW Class Members were not paid a salary sufficient to compensate them at the minimum wage rate for every hour they worked” as the regulations governing the FWW method require. Motion at 5 (relying on 29 C.F.R. § ’778.114(a)(4)).

b. Conditional Certification Under § 216(b).

16. Turning to their conditional certification arguments, the Plaintiffs note that employees wishing to pursue FLSA claims under § 216(b)’s collective-action mechanism must opt into, the ease in writing. See Motion at 7 (citing 29 U.S.C. § 216(b)). Thus, the Plaintiffs note, potential Plaintiffs must obtain notice as to the pending collective action so that they can decide whether to participate in it. See Motion at 7 (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)).

17. The Plaintiffs note that the FLSA authorizes notice only-to “similarly situated” members of a proposed class. Motion atr7 (citing 29 U.S.C. § -216(b); Bustillos v. Bd. of Cnty. Comm’rs of Hidalgo Cnty., 310 F.R.D. 631, 662 (D.N.M. 2015)(Brown-ing, J.)). The Plaintiffs aver that similarity is a low bar, and that, here, they “have satisfied the burden by demonstrating sufficient facts to suggest that Plaintiffs and the class ‘were the victims of a single corporate decision, policy, or plan.’ ” Motion at 7 (quoting Thiessen v. General Electric Capital Corp., 267 F.3d at 1102). Thus, the Plaintiffs request that the Court conditionally certify the proposed FWW Class and Salary Class, and authorize notice to all similarly situated potential Plaintiffs. See Motion at 14.

18. The Plaintiffs advance two primary arguments regarding conditional certification under § 216(b).

19. First, the Plaintiffs argue that the United States Court of Appeals for the Tenth Circuit has adopted a “lenient, ad hoc standard” for determining whether a proposed class’ members are similarly situated. Motion at 8 (relying on Thiessen v. General Electric Capital Corp., 267 F.3d at 1105)). The Plaintiffs contend that this standard entails a two-step process, beginning in the notice stage with an initial determination whether a plaintiff is similarly situated to other potential class members. See Motion at 8-9 (relying on Bustillos v. Bd. of Cnty. Comm’rs of Hidalgo Cnty., 310 F.R.D. at 662-63). The Plaintiffs argue that this standard requires only that a plaintiff “describe the potential class within reasonable limits and provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist.” Motion at 9 (quoting Schwed v. Gen. Elec. Co., 159 F.R.D. 373, 375-76 (N.D.N.Y. 1995)(Hurd, J.))(internal quotation marks omitted).

20. At the notice stage, they aver, the court “ ‘does not weigh the evidence, resolve factual disputes, or rule on the merits of plaintiffs’ claims.’ ” Motion at 9 (quoting Greenstein v. Meredith Corp., 948 F.Supp.2d at 1267 (citation omitted)). Further, they state, if proposed class members are employees with similar positions, allegations that the defendants “ ‘engaged in a pattern or practice of not paying overtime [are] sufficient to allege that plaintiffs were together the victims of a single decision, policy or plan.’ ” Motion at 10 (alteration added)(quoting Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. 431, 433-34 (D. Kan. 2007)(Vratil, J.)(citation omitted)). In short, the Plaintiffs contend that, at the notice stage, courts determine similarity by examining (i) whether “the proposed class includes employees with similar positions”; and (ii) whether the “defendants had a single decision, policy, or plan to not pay class members overtime.” Motion at 10 (citing Foster v. Nova Hardbanding, LLC, 2016 WL 4492829, at *2, 2016 U.S. Dist. LEXIS 53426, at *7 (D.N.M. 2016)(Garza, J.)).

21. According to the Plaintiffs, courts should not consider a claim’s merits until the second stage, which “occurs at the close of discovery, after all potential plaintiffs have opted in the action.” Motion at 10 (citing Thiessen v. General Electric Capital Corp., 267 F.3d at 1103). At that stage, the Plaintiffs argue, courts use a “stricter standard to determine whether the class is ‘similarly situated’ and may therefore proceed to trial as a collective action.” Motion at 10.

22. The Plaintiffs stress that, before the second stage, a court “simply evaluates ‘the substantial allegations of the complaint along with any supporting affidavits or declarations.’ ” Motion at 10-11 (quoting Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. at 434 (citing Thiessen v. General Electric Capital Corp., 267 F.3d at 1102). Indeed,' the Plaintiffs note, “the Tenth Circuit has held that a district court should not address the merits of an underlying FLSA claim when ruling on a procedural request for collective action certification.” Motion at 11 (relying on Thiessen v. General Electric Capital Corp.).

23. Here, at the notice stage, the Plaintiffs contend that they have made sufficiently “substantial allegations” that the FWW Class members are similarly situated. Motion at 12 (relying on Ruiz Decl.; Constancio Decl; Silva Decl.; Acosta Decl). The Plaintiffs maintain that the FWW Class includes workers in substantively similar positions entailing “similar job duties as oilfield manual laborers” as well as “physically intense” duties such as “rigging up, rigging down, maintaining, and monitoring water and fluid transfer equipment at well sites.” Motion at 12 (citing Ruiz Decl. ¶2, at 1; Acosta Decl. ¶ 2, at 1; Silva Decl. ¶ 2, at 1; Constancio Decl. ¶ 2, at 1). That the potential FWW Class members’ job titles and levels of responsibility vary somewhat is immaterial, the Plaintiffs argue. See Motion at 13. The Plaintiffs contend, moreover, that the potential FWW Class members “were victims of a single decision, plan, or policy— Swire’s decision to change their compensation.” Motion at 13. The Plaintiffs avow that “[cjourts regularly find evidence of an identifiable corporate level policy for calculating compensation support class certificar tion in FLSA cases.” Motion at 14. Thus, here, the Plaintiffs contend, “because all the FWW class members were subject to the same allegedly improper method of calculating their overtime ... they are similarly situated regardless of the individual rates of pay, minor differences in their job duties, or any other subtle factual distinctions.” Motion at 14-15.

24. The Plaintiffs also assert that they have made “substantial allegations” that the Salary Class members are similarly situated. Motion at 15 (relying on Landry Deck; Sutton Decl.; Ruiz Decl.). As with the FWW Class, the ■ Plaintiffs contend that the proposed Salary Class includes employees with substantively similar job duties including “rigging up ■ and monitoring fracking equipment that pumped and controlled the flow of waters and chemicals at well sites.” Motion at 16 (citing Landry Decl. ¶ 2, at 1; Sutton Decl. ¶ 2, at 1; Ruiz Decl. ¶2, at 1). The Plaintiffs likewise maintain that “[artificial differences in job titles or other employer classifications do not control over Plaintiffs’ actual job duties.” Motion at 16. With respect to Swire Oil’s alleged “decision, plan, or policy” regarding the Salary Class’ compensation, the Plaintiffs say that “Swire made a company-wide decision to classify nearly all of its oilfield manual laborers as exempt from overtime.” Motion at 18. In the Plaintiffs’ view, courts routinely “certify a class based on allegations that Defendants classified the putative class members as .exempt from overtime and failed to pay them overtime for hours over 40 worked in a week.” Motion at 17 (citing Koehler v. Freightquote.com, Inc., 93 F.Supp.3d 1257, 1264 (D. Kan. 2015)(Crabtree, J.)). Thus, here, the Plaintiffs argue, “differences in compensation, location of- employment, or experience level will not defeat conditional certification,” because they have alleged “a company-wide decision to misclassify workers as exempt and not pay overtime.” Motion at 17-18 (relying on Gieseke v. First Horizon Home Loan Corp., 2006 WL 2919076, at *1, 2006 U.S. Dist. LEXIS 76732, at *2 (D. Kan. 2006)(Murguia, J.)).

25.Second, the Plaintiffs contend that they have proffered evidence that is “more than sufficient-to justify conditional certification for both proposed classes.” Motion at 14. Here, they assert, “each of the de-clarants supporting certification states he has spoken to other employees who have confirmed that they were, paid according to the fluctuating workweek and believed there were weeks when they made below the minimum wage.” Motion at 18 (citing Landry Decl. ¶ 9, at 3; Sutton Decl. ¶ 9, at 3; Ruiz Decl. ¶ 9, at 3; Acosta Decl. ¶ 9, at 3; Silva Decl. ¶ 9, at 3; Constancio Decl. ¶ 9, at 3). They posit that “[ojther courts weighing evidence and allegations have granted class notice with far less evidence than Plaintiffs have presented in this motion.” Motion at 18 (citing Brown v. Money Tree Mortg., Inc., 222 F.R.D. 676, 680 (D. Kan. 2004)(Lungstrum, J.); Williams v. Sprint/United Mgmt. Co., 222 F.R.D. 483, 487 (D. Kan. 2004)(Lungstrum, J.); Reab v. Elec. Arts, Inc., 214 F.R.D. 623, 628 (D. Colo. 2002)(Babcock, J.)).

26. The Plaintiffs contend, moreover, that “[pjersonal knowledge of how other employees were subject to the same illegal pay policy based on conversations with other workers provide substantial allegations that the putative class members were victims of a single decision, policy, or plan.” Motion at 18. Here,- they aver, they “not only present the court with six declarations detailing their allegations about Swire’s fluctuating workweek and salary policies, they also point to over 40 Plaintiffs who have already filed opt-in consents joining this litigation to pursue their claims against Swire.” Motion at 18 (citing Landry Decl. ¶ 8, at 2; Sutton Decl. ¶ 8, at 2; Ruiz Decl, ¶ 8, at 2; Acosta Decl. ¶ 8, at 2; Silva Decl. ¶ 8, at 2; Constancio Decl. ¶ 8, at 2).

c. The Proposed Notice and Consent Form.

27. The Plaintiffs attach to the Motion a proposed Notice and' Consent Form that briefly describes this case, instructs potential- Plaintiffs on how to opt into the case, explains that the FLSA prohibits retaliation for participating in the ease, and describes the effects of joining the case. See Notice and Consent Form, at 1-3. -

28. The Plaintiffs contend that the Notice and Consent Form is ■ “timely, accurate, and- informative” as the Supreme Court of the United States of America requires. Motion at 19 (citing Hoffmann-La Roche v. Sperling, 493 U.S. at 172, 110 S.Ct. 482 (internal quotation marks omitted). The Plaintiffs explain that the-Notice and Consent Form- “provides accurate notice of the pendency of the action and of the opportunity to opt in” and makes “no comments on the merits of the case.” Motion at 19-20. They assert, moreover, that it' “provides clear instructions on how to opt-in and accurately states the prohibition against retaliation for participating in a FLSA action.” Motion at 20 (citing 29 U.S.C. § 215(a)(3)). Accordingly, they assert, “the proposed notice achieves the goal of providing employees accurate and timely notice concerning the pendency of the lawsuit, and should be adopted.” Motion at 20.

29. The Plaintiffs add that the Notice and Consent Form “mirrors judicial notice forms that have been approved by other federal courts, including the forms approved by-the District of New Mexico ....” Motion at 19 (relying on Saenz v. Rod’s Prod. Servs., 2015 U.S. Dist. LEXIS 177697 (D.N.M. 2015)(Brack, J.)).

30. To ensure that the Notice and Consent Form reaches all potential Plaintiffs, the Plaintiffs request that the Court order Swire Oil to

produce within ten (10) days of the granting of this Motion in an electronic format such as an excel spreadsheet the names, all known addresses, all phone numbers (home, mobile, etc.), dates of birth, all known email addresses (work and personal), and dates of employment for all the class members employed from three years prior to the filing of this lawsuit to the present.

Motion at 20. The Plaintiffs assert that “[t]his informatiori will allow Plaintiffs to confirm current addresses and/or to locate those persons who may have moved from their last known addresses.” Motion at 20.

31. In addition, the Plaintiffs request that the Court authorize that the Notice and Consent Form “be sent by first class mail, by electronic mail, and by text message within seven (7) days of receiving the class list from Defendants.” Motion at 20. The Plaintiffs propose that their “counsel will oversee the mailing ... of such notices and pay the. up-front charges for. same (postage, copying, etc.).” Motion at 20.

32. Finally, the Plaintiffs -request authorization for their counsel to “hire a third-party class action administration company to conduct the actual mailing of the forms if it deems appropriate.” Motion at 20.

33. The Plaintiffs provide several justifications for their request to send the Notice and Consent Form by email and by text message. See Motion at 20-22.

34. Regarding email, the Plaintiffs argue that such notice “increases' the chance of the class members receiving and reading the notice.” Motion at 21. The Plaintiffs note that courts have observed that “ ‘all manner of commercial transactions are routinely cemented by electronic submission,’ ” Motion at 21 (quoting Mraz v. Aetna Life Ins. Co., 2014 WL 5018862, at *5, 2014 U.S. Dist. LEXIS 142923, at *5 (M.D. Pa. 2014)(Conaboy, J,)), and’that ‘“communication through email' is - now the norm’ ” in FLSA cases, Motion at 21 (alteration omittedXquoting Butler v. DirectSAT USA, LLC, 876 F.Supp.2d 560, 575 (D. Md. 2012)(Chasanow, J.)(citation omitted)). Further, the Plaintiffs argue, email is particularly “appropriate ... in:[a] case such as this because the potential class members are likely dispersed to various wellsites around the country and may be away from their homes and addresses of record for weeks or months at a time.” Motion at 21 (alteration added).

35. With respect to notice via text message, the Plaintiffs avow that such notice “is a viable and efficient means of communicating with many prospective members of a collective action.” Motion at 21 (citing Bhumithanarn v. 22 Noodle Mkt. Corp., 2015 WL 4240985, at *5, 2015 U.S. Dist. LEXIS 90616, at *5 (S.D.N.Y. 2015)(Sullivan, J.)). They posit that “[t]ext notice, perhaps even more effectively than email notice, can reach workers in remote locations with limited access to either regular mail or to a personal computer.” Motion at 21. ' '

36. In addition to the above requests, the Plaintiffs also propose “that class members be allowed to execute their consent form electronically via a service called Right Signature which tracks the IP address and email address from which the form is being accessed and executed.” Motion at 22 (footnote omitted). The Plaintiffs explain that this service enables class members to sign their forms “by clicking on a link, which in turn takes them to a website where they can review the document they are signing, click a box indicating they have read and understood the consent form and insert information such as their name and address.” Motion at 22. At that point, the Plaintiffs continue, “a copy of the form is made accessible to Plaintiffs counsel who will, in turn, file same with the Court Motion at 22.

37. This practice, the Plaintiffs contend,- “is justified in this case because of the difficulty of receiving and sending mail from an isolated wellsite.” Motion at 22. They add, moreover, that “[sjeveral -recent decisions have approved the use of online electronic , signature opt-in forms,” Motion at 22 (citing, among others, Dyson v. Stuart Petrol. Testers, Inc., 308 F.R.D. 510, 517 (W.D. Tex. 2015)(Pitman, J.)), and that “New Mexico law [ ] explicitly allows the use of electronic signatures,” Motion at 23 (citing N.M. Stat. Ann. § 14-16-7).

38. The Plaintiffs make several additional requests. See Motion at 23-25.

39. The Plaintiffs request that the Court “authorize the mailing of a reminder notice via regular mail, electronic mail, and text message 30 days into the opt-in period.” Motion at 23. They emphasize the potential Plaintiffs’ remote locations as a justification for a reminder and assert that courts routinely find that a reminder is appropriate in FLSA cases. See Motion at 23 (citing, among others, Chhab v. Darden Rests., Inc., 2013 WL 5308004, at *16, 2013 U.S. Dist. LEXIS 135926, at *16 (S.D.N.Y. 2013)(Buchwald, J.)).

40. The Plaintiffs also request that “class members be given 75 days to opt into the lawsuit.” Motion at 24. They posit that such an amount of time is “reasonable and necessary given the unique obstacles in this case that could delay potential plaintiffs’ receipt of the notice.” Motion at 24 (footnote omitted).

41. Next, the Plaintiffs ask that, during the opt-in period, “the court issue an order prohibiting Defendants from communicating with the class members regarding this lawsuit or its resolution.” Motion at 24.

42. Finally, the Plaintiffs “urge the court to make rulings regarding both the content of the notice and the method of delivery” should the Court grant conditional certification. Motion at 24. The Plaintiffs note that some courts grant certification and then invite the parties to negotiate the notice’s language and its methods of communication; in the Plaintiffs’ view, such a practice results in protracted disputes over contested issues, which “further delay class notice.” Motion at 24-25.

d. The Request for Expedited Consideration.

43. The Plaintiffs note that the “statute of limitations is running against the claims of the potential opt-in plaintiffs.” Motion at 25. They contend that FLSA actions “ ‘must be commenced with[in] two years,’ unless a willful violation is proven,” which “may be commenced within three years.” Motion at 25 (quoting 29 U.S.C. § 255(a)). They note, however, that an FLSA action is not considered “commenced” with respect to opt-in plaintiffs in a collection until their “written consent is filed with the court.” Motion at 25 (citing 29 U.S.C. § 256(b)). Thus, they assert, “[t]he rolling statute of limitations running against plaintiffs in actions to recover unpaid wages means that their claims are reduced by each day that passes between the filing of the action and the day on which their consent form is received by the Clerk of the Court.” Motion at 25.

44. For that reason, the Plaintiffs request that the Court expedite its consideration of the Motion. See Motion at 25.

3. The Response.

45. Swire Oil responded to the Motion on January 27, 2017. See Response at 1.

46. Swire Oil advances four primary arguments in opposition to conditional certification. First, Swire Oil argues that the proposed FWW Class and Salary Class members are not similarly situated, because the Plaintiffs fail to identify a decision, policy, or plan to violate the class members’ FLSA rights. See Response at 2-4. Second, Swire Oil contends that the proposed FWW Class and Salary Class members are not similarly situated, because the classes are comprised of employees with dissimilar positions and because some opt-in Plaintiffs have already settled their claims with Swire Oil. See Response at 4-7. Third, Swire Oil argues that the proposed classes’ scopes are overbroad. See Response at 7-8. Fourth, and finally, Swire Oil asserts that the Plaintiffs’ proposed Notice and Consent Form is deficient, because it does not address payment of court costs and expenses in the event that the Plaintiffs lose. See Response at 8-9.

47. The Court reviews these arguments in turn.

a. Swire Oil’s Alleged Decision, Policy, or Plan to Violate the Proposed Class Members’ FLSA Rights.

48. Swire Oil begins by noting that the Court has discretion whether to conditionally certify a collective action under § 216(b) and by arguing that, although the “similarly situated” test is “lenient, it is not automatic.” Response at 2 (citing Thiessen v. General Electric Capital Corp., 267 F.3d at 1102). Swire Oil contends that, to meet the similarly situated test, plaintiffs “must submit ‘substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.’ ” Response at 2 (quoting Thiessen v. General Electric Capital Corp., 267 F.3d at 1102 (citation omitted)). Swire Oil argues that the Plaintiffs have not made such “substantial allegations,” because they “fail to identify any single ‘decision, policy, or plan’ by Swire to violate their rights under the FLSA.’ ” Response at 2-3.

49. According to Swire Oil, the Plaintiffs admit that “they were subject to differing methods of pay at differing times,” that some Plaintiffs “received notice of a change to the FWW method of payment[ ] while others did not,” and that Swire Oil explained the FWW method to some Plaintiffs and not to others. Response at 3 (citing Motion at 4, 6). Swire Oil contends that these “admissions demonstrate that [the Plaintiffs] were not all victims of a single ‘decision, policy, or plan’ by Swire.” Response at 3.

50. Swire Oil posits, moreover, that the Plaintiffs admit that, “as late as the fall of 2013, ‘nearly" all of Swire’s manual laborers were paid on a salaried basis.” Response at 3 (quoting Motion at 4). In Swire Oil’s view, if “some manual laborers were not paid in this manner, clearly no single decision, policy or plan governed at the time.” Response at 3.

51. Similarly, Swire Oil notes that “[s]ome Plaintiffs admit that they were paid hourly for most of 2014, but allege other positions were improperly classified as exempt.” Response at 3. Swire Oil contends that this is “not evidence of a single ‘decision, policy, or plan’ by Swire.” Response at 3.

52. Finally, Swire Oil notes that the “Plaintiffs allege that ‘at the end of 2014’ Swire began paying its hourly workers under FWW.” Response at 3. This alleged policy, Swire Oil notes, was adopted “at least a year and a half after Swire had allegedly made another alleged ‘decision, policy, or plan’ to improperly classify certain positions as exempt.” Response at 3-4. Swire Oil asserts that these “varying alleged decisions by Swire to support [the Plaintiffs’] varying claims” fail to meet the test for similarly under § 216(b). Response at 4.

b. The Similarity of the Proposed Class Members’ Positions at Swire Oil and Swire Oil’s Settlement of Certain Proposed Class Members’ Claims.

53. Turning to the similarly situated test’s second requirement, Swire Oil avers that the proposed FWW Class and Salary Class are not comprised of employees with similar positions. See Response at 4.

54. Swire Oil contends that, despite the Plaintiffs’ assertion that the operators’ primary duties were essentially the same, “the declarations submitted in support of the Motion [demonstrate] that, while engaged in a common enterprise, Plaintiffs’ job duties differed.” . Response at 4. Swire Oil argues that, although “[a]ll the Plaintiffs apparently played some role in setting up the equipment on site and rigging it down after the job was complete,” Response at 4 (relying on Landry Deck; Sutton Decl.; Ruiz Decl,; Acosta Decl.; Silva Decl.; Constancio Decl,), their “specific duties differed,” Response at 5, Swire Oil notes, for example, that Field Supervisors such as Landry “check the frack tanks, check the fluids, and make sure pressure is sustained in accordance with procedures,” whereas Water Transfer Technicians such as Constancio “work with pump and tank operators to run the pump, flow the tank, record how much water was pumped and make sure equipment is maintained,” Response at 4-5. Swire Oil concludes that “[s]imply because employees are engaged in a common enterprise” does not mean they are “similarly situated.” Response at 6, Rather, Swire Oil argues, “[wjhile Plaintiffs were all oilfield workers, they performed differing duties and were not similarly situated.” Response at 6.

55. Aside from alleged dissimilarities in their employment, Swire Oil argues that certain proposed class members are not similarly situated, because they have already settled their claims with Swire Oil. See Response at 6,

56. Swire Oil notes that several opt-in Plaintiffs also opted into the lawsuits that employees previously filed against Swire Oil for the company’s classification of oilfield manual laborers as exempt from'the FLSA’s overtime compensation requirements. See Response at 6 (referencing Bergman v. Swire Oilfield Servs., LLC, No. CIV 13-0989, Complaint (W.D. Tex. Oct. 30, 2013)(W.D. Tex. Doc. 1), filed January 27, 2017 (D.N.M. Doc. 37-1.B); McCain v. Swire Oilfield Servs., LLC, No. CIV 14-2526, Complaint (S.D. Tex. Sept. 1, 2015)(S.D. Tex. Doc. 1), filed January 27, 2017 (D.N.M. Doc. 37-1.C)). Swire Oil notes that both cases “resolved with no finding of liability and were dismissed with prejudice.” Response at 6 (citing Bergman v. Swire Oilfield Servs., LLC, No. CIV 13-0989, Order Approving Collective Action Settlement and Dismissing Action (W.D. Tex. Aug. 12, 2014)(W.D. Tex. Doc. 45), filed January 27, 2017 (D.N.M. Doc. 37-1.D); McCain v. Swire Oilfield Servs., LLC, No. CIV 14-2526, Order Dismissing Action with Prejudice (S.D. Tex. May 26, 2016)(S.D. Tex. Doc. 18), filed January 27, 2017 (D.N.M. Doc. 37-1.D)). Swire Oil discusses both cases in turn.

57. First, Swire Oil notes that Bergman v. Swire Oilfield Servs., LLC involved allegations “that Swire improperly paid Water Transfer Technicians ... a salary plus daily bonus until September 1, 2013, when it changed their pay method to hourly plus overtime,” Response- at 6. Swire Oil notes that opt-in Plaintiffs Jiminsky Evans, George Murphy, Ernie Salinas, Hugo Valdez, and Mikah Wilhite also opted into Bergman v. Swire Oilfield Servs., LLC, and settled their claims against Swire Oil, See Response at 6 (referencing, among others, Bergman v. Swire Oilfield Servs., LLC, No. CIV 13-0989, Notice of Consent to Join by Jiminsky Evans (W.D. Tex. April 11, 2014)(W.D. Tex, Doc. 36-5), filed January 27, 2017 (D.N.M. Doc. 37-1.E)). Swire Oil notes that it funded the Bergman v. Swire Oilfield Servs., LLC settlement in September 2014. See Response at 6 (citing Declaration of Vicki Tucker ¶ 5, at 2 (executed January 24, 2017), filed January 27, 2017 (Doc. 37.1-A)(“Tucker Decl.”)).

58. Swire Oil adds that Valdez and Wil-hite are not entitled- to further- payment, because it paid them on an hourly basis or as salaried exempt supervisors from the time they settled their claims until their employment terminated. See Response at 6-7 (citing Tucker Dec. ¶¶4-5, at 1-2). Swire Oil notes, moreover, that, although Tamayo did not opt into Bergman v. Swire Oilfield Servs., LLC, “he later settled his claims against Swire pursuant to the formula used to calculate damages in- that case,” and “sighed a release and Swire paid [him] in or around August of 2015.” Response at 7 (citing Tucker Decl. ¶ 6, at 2).

59. Second, Swire Oil notes that McCain v. Swire Oilfield Servs., LLC involved allegations “that Swire improperly-paid its field operators a salary plus daily bonus'.” Response at 7. Swire Oil notes that opt-in Plaintiffs Eric Adkison, Travis Mearns, and Clay Sanderford also opted into McCain v. Swire Oilfield Servs., LLC, and settled their claims against Swire Oil. See Response at 7 (citing McCain v. Swire Oilfield Servs., LLC, No. CIV 14-2526, Sealed, Unopposed Motion to Permit Disbursement at 1-2 (S.D. Tex. May 25, 2016)(S.D. Tex. Doc. 17), filed January 27, 2017 (D.N.M. Doc. 38)). Swire Oil notes that it funded the McCain v. Swire Oilfield Servs., LLC settlement in April 2016. See Response at 7 (citing Tucker Decl. ¶ 8, at 2). ‘

60. , Swire Oil adds, that Adkison’s employment with Swire Oil terminated on August 17, 2015, and that, as a result, “he is not entitled to additional compensation.” Response at 7 (citing Tucker Deck ¶ 9, at 2). Swire Oil asserts that “[t]he same is true with respect to Mr. Sanderford, whose second and final employment by Swire terminated on August 15, 2015.” Response at 7 (citing Tucker Deck ¶ 10, at 2).

c. The Proposed Classes’ Scopes.

61. The proposed class members’ alleged dissimilarities notwithstanding, Swire Oil contends that the proposed classes are overbroad. See Response at 7.

62. Swire Oil contends that the Plaintiffs “have not demonstrated that alleged misclassification of non-exempt employees or improper payment under the FWW is occurring nationwide," Response at 7. Swire Oil asserts that “FLSA violations at one of a company’s multiple locations generally are not, without more, sufficient- to support company-wide notice.” Response at 7 (quoting Graham v. Jet Specialty, Inc., 2016 WL 154846, at *4, 2016 U.S. Dist. LEXIS 3420, at *10 (W.D. Tex. 2016)(Ezra, J.))(quoting McCloud v. McClinton Energy Grp., L.L.C., 2015 WL 737024, at *8, 2015 U.S. Dist. LEXIS 20374, at *21 (W.D. Tex. 2015)(Ezra, J.))(internal quotation marks omitted).

63. Here, Swire Oil notes, the Plaintiffs “proffer only declarations from individuals with knowledge of Swire’s practices in New Mexico, Texas, Oklahoma and North Dakota.” Response at 8 (referencing Landry Deck ¶ 3, át 1; Sutton Deck ¶ 3, at 1; Ruiz Deck ¶ 3, at 1; Acosta Deck ¶ 3, at 1; Silva Deck ¶ 3, at 1; Constancio Deck ¶ 3, at 1). Swire Oil notes that none of the declarants mentions “any discussion with employees of Swire .,. — from any state— about Swire’s practices outside of New Mexico, Texas, Oklahoma and North Dakota.”-Response-at 8. Similarly, Swire Oil observes, “none of the declarations allege any personal knowledge of Swire’s nationwide policies.” Response at '8 (citing, among others, Bryant v. Act Fast Delivery of Colo., Inc., 2015 WL 3929663, 2015 U.S. Dist. LEXIS 82730 (D. Colo. 2015)(Krieger, C.J.)).

64. Swire Oil reasons that, accordingly, “[t]here is no reasonable basis to conclude the alleged illegal practices extended beyond the borders of New Mexico, Texas, Oklahoma and North Dakota.” Response at 8. Thus, Swire Oil requests that, if the Court grants conditional certification, the Court limit the proposed classes’ scope to these four states. See Response at 8.

d. The Proposed Notice and Consent Form.

65. Last, Swire Oil addresses the Plaintiffs’ proposed Notice and Consent Form. See Response at 8.

66. Swire Oil raises one objection to the proposed form — that, although it addresses the potential for an unfavorable outcome for the Plaintiffs, it does not indicate that the Plaintiffs may be responsible for paying court costs in the event that they lose. See Response at 8-9.

67. Swire Oil argues that, “[i]n the Tenth Circuit, courts regularly include a notice that plaintiffs may have to pay court costs if they do not prevail.” Response at 8 (citing Creten-Miller v. Westlake Hardware, Inc., 2009 WL 2058734, at *2, 2009 U.S. Dist. LEXIS 60393, at *3-4 (D. Kan. 2009)(Vratil, J.); Wass v. NPC Int’l, Inc., 2011 WL 1118774, at *8, 2011 U.S. Dist. LEXIS 32761, at *8 (D. Kan. 2011)(Lungstrum, J.)).

68. Accordingly, Swire Oil requests that, should the Court grant conditional certification, it order that the following sentence be inserted at the end of the first paragraph in section six of the Notice and Consent Form: “Also, if plaintiffs lose, they could be responsible for paying court costs and expenses.” Response at 8-9.

4. The Reply.

69. The Plaintiffs replied on February 10,2017. See Reply at 1.

70. The Plaintiffs contend that Swire Oil’s arguments are based on a “post-discovery framework” rather than the “pre-discovery framework” that the FLSA requires. Reply at 1.

71. The Plaintiffs advance four arguments in support of conditional certification. First, they assert that Swire Oil’s argument that they fail to allege a “single decision, policy, or plan” to violate the FLSA “overstates Plaintiffs’ burden” at the pre-discovery phase. Reply at 1. Second, they aver that Swire Oil effectively changes the “lenient ‘similarly situated’ standard to an ‘identical’ standard when [it] emphasize[s] minor differences between the job duties of one manual laborer in the oil field from another.” Reply at 1. Third, as to Swire Oil’s arguments regarding the opt-in Plaintiffs who have ah-eady settled their claims against Swire Oil, the Plaintiffs contend that those settlements do not defeat conditional certification, because they “do not affect any continuing or new FLSA violations that [took] place after the effective date of the settlements.” Reply at 2 (alteration added). If anything, the Plaintiffs posit, “[t]he Court can exclude from the class any employee who released their claims and did not continue to work for Defendants after the release date.” Reply at 2. Fourth, the Plaintiffs argue that the proposed classes’ scopes are appropriate. See Reply at 2. Fifth, and finally, the Plaintiffs respond to Swire Oil’s single objection to the proposed Notice and Consent Form. See Reply at 8.

72. The Court reviews these arguments in turn.

73. First, the Plaintiffs contend that they have “clearly identified two [] policies/plans” to violate the proposed class members’ FLSA rights. Reply at 3. They note that the Motion alleges that Swire Oil had a “policy of denying overtime pay to a group of manual laborers working in oilfields by misclassifying them as exempt.” Reply at 3 (citing Motion at 1-3). They note that the motion also alleges a “policy of paying oilfield manual laborers under the fluctuating workweek method [ ] of pay without complying with the statute’s arduous prerequisites.” Reply at 3 (citing Motion at 1-3). The Plaintiffs' admit that “there are two different policies/plan[ ]s in question here,” but contend that “[t]he fact that Defendants paid some employees under both illegal plan[ ]s does not amount to the lack of a ‘single’ plan.” Reply at 3 (alterations added). Rather, they argue, “[t]here simply are two different classes and within each class Plaintiffs have identified separate plan[ ]s/policies that violate the law.” Reply at 3 (alteration added).

74. In the Plaintiffs’ view, Swire Oil “cannot pay any employee in the same week under both the compensation systems”; “[t]hey are mutually exclusive in that one envisions some form of overtime and the other envisions no overtime pay.” Reply at 3. Thus, they conclude, “there will be zero overlap over the two classes because Defendants did not and could not have used both compensation systems in the same week for any given employee.” Reply at 3. They add that this conclusion is “supported by [] substantial allegations,” including the six declarations attached to the Motion, the Cook Decl. — which the Plaintiffs attach to the Reply — as well as “the overwhelming interest in this case as show[n] by 47 opt in plaintiffs,” Reply at 3 (alteration added).

75. Second, the Plaintiffs contend that they have made “substantial allegations” that the proposed classes’ members are similarly situated. Reply at 4. The Plaintiffs observe that, before discovery, the standard for similarity is “lenient,” and that, at the close of discovery, “the parties can brief the Court on whether the case should proceed to trial under a collective basis.” Reply at 4. They remind the Court that “[t]he only relief sought here is the mailing of a notice to potential class members.” Reply at 4. The Plaintiffs assert that, at this lenient pre-discovery stage, they have made sufficiently substantial allegations of similarity to justify mailing a notice to potential class members. See Reply at 4.

76. In support of this argument, the Plaintiffs note that the potential class members “were all manual laborers working in oilfields who were paid under one or both suspect pay practices.” Reply at 4. As in the Motion, they maintain that it is irrelevant for conditional certification purposes “[wjhether one employee turned a wrench or another operated a flow back pump,” because “[tjhe jobs were similar in material respects and the pay methods were identical within each defined class.” Reply at 4 (emphases in original). They note, for example, that the Salary Class members were “all exempt regardless of their job titles or duties,” and as “such, they are similarly situated.” Reply at 4.

77. Third, the Plaintiffs argue that Swire Oil’s “identification of 3 out of 47 Plaintiffs who released their claims and then ceased working for Defendants has no effect on certification.” Reply at 5. The Plaintiffs admit that, if true, those plaintiffs who settled their claims against Swire Oil and then terminated their employment “have no additional wage cla