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A federal judge has given preliminary approval to a class-action lawsuit against two oil and gas companies with headquarters in Denver, which alleges they violated federal labor laws in failing to pay their safety consultants overtime.

Morgan Buffington sued Ovintiv USA Inc. (formerly Encana Corporation) and Newfield Exploration Company — which is now part of Ovintiv — claiming that he was a safety consultant between 2016 and 2019 and was treated as an independent contractor. He reportedly received a flat rate per day, but often worked in excess of 12 hours per day without overtime compensation.

Buffington, of Oklahoma, alleged his experience was similar to that of other safety consultants for Ovintiv nationwide, and moved to certify his lawsuit as a class action for violations of the Fair Labor Standards Act.

In a July 16 order, U.S. District Court Judge Raymond P. Moore authorized Buffington to work with the extraction companies to draft a notification for all members of the class. The judge noted he was not reaching any decision about the merits of Buffington’s allegations.

“If the facts are as Defendants contend, they will have an opportunity to seek decertification and such other relief as they deem appropriate,” Moore explained.

The Fair Labor Standards Act requires overtime pay in excess of 40 hours per week unless an employee is exempt. The U.S. Department of Labor has advised that there is "no single rule or test" for determining whether an individual is an employee or a contractor, but relevant factors include the permanency of the employment, the integral nature of the worker's services to the business, and the degree of control from the company.

"While Buffington was classified as an independent contractor, he was regularly on call for Ovintiv and was expected to drop everything and work whenever needed," Buffington alleged in his complaint in arguing he was an employee under the law. "Ovintiv controlled all the significant or meaningful aspects of the job duties performed by Buffington."

Lawyers for Ovintiv argued against creating a legal class for safety consultants, saying it was unclear that the workers were subjected to a single compensation policy or plan.

"A nationwide class of Safety Consultants would cover multiple third-party staffing companies and multiple operating areas," they wrote to the court. The company claimed that Buffington was not an employee, and submitted a contract with a staffing company stipulating that Newfield Exploration "shall exercise no control over Contractor’s employees."

The litigation is the latest in a series of lawsuits in Colorado challenging employers' compensation schemes for certain types of workers. Judges have recently given the preliminary go-ahead to class-action lawsuits against King Soopers and Natural Grocers, with assistant store managers claiming their lack of overtime pay also violated the fair labor law.

The case is Buffington v. Ovintiv et al.

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