Peery v. Nixon Engineering,llc

Western District of Texas, txwd-6:2018-cv-00358

Exhibit A - Declaration of Teena Fogarty

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EXHIBIT A IN UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION JAYME PEERY, Individually and on behalf of all others similarly situated CIVIL ACTION NO. 6:18-cv-00358 JURY TRIAL DEMANDED Plaintiff, cascos cascos caseros cascos con cascos COLLECTIVE ACTION PURSUANT TO 29 U.S.C. $216(b) NIXON ENGINEERING, LLC, CLASS ACTION PURSUANT TO FED. R. CIV. P. 23(b) Defendant. DECLARATION OF TEENA FOGARTY Pursuant to 28 U.S.C. $1746, I hereby declare as follows: 1. My name is Teena Fogarty. I am over 21 years of age and have never been convicted of a felony or of a crime involving moral turpitude. I have personal knowledge of the facts contained herein. I therefore am competent and qualified to offer this Declaration. The facts contained herein are true and correct. 2. I am the Controller of Nixon Engineering, LLC ("Nixon" or "Defendant"). When necessary, I also work as a Supervisor for Nixon. Defendant provides full-service traffic control to a number of clients, including but not limited to the Texas Department of Transportation ("TxDOT"). 3. Defendant employs individuals in various capacities, including Flaggers, Drivers, Crew Leaders, Yard Managers, Fleet Managers and Supervisors. 4. Flaggers, Drivers, Crew Leaders and Yard Managers are classified as non-exempt employees under the Fair Labor Standards Act ("FLSA") and are paid on an hourly basis; Flaggers, Drivers, Crew Leaners and Yard Managers are all part-time and on-call. The majority of Defendant's non-exempt employees work four (4) days per week and for Defendant's employees to work less than eight (8) hours per day. As a result, few non-exempt employees work more than thirty (30) hours per week. Supervisors and Fleet Managers are classified as exempt employees under the FLSA. 4838-0669-5322.3 5. When Defendant is providing services to TxDOT, Defendant is required to and does comply with its contracts with TxDOT, including any prevailing wage required by such contracts. Generally speaking, contracts Defendant has with TxDOT will provide that Defendant is paid by TxDOT based in part on the hours worked by certain classifications of field employees, including Flaggers, Drivers and Crew Leaders. Defendant is required to provide documentation of hours worked by these employees to TxDOT, typically on a "Form 1257." 6. Regardless of its contractual obligations with any third party, Defendant's policy is to pay its employees for all hours worked and to pay its non-exempt employees overtime for all hours worked over forty in a workweek. In addition to the hours reported to TxDOT on Form 1257, Defendant requires employees to report other hours worked for Defendant (even where such hours will not be compensated by TxDOT), including compensable drive time. In the past, employees were required to report these hours worked via text message to their Supervisors. Employers now report these hours on the DP ("driver passenger") Report form in Defendant's proprietary timekeeping software. It is not Defendant's policy to pay employees only based upon hours reported in the Form 1257. Defendant requires employees to sign off on the daily work record confirming that the hours reported therein are correct. Defendant also has policies and procedures in place to ensure that employees are properly compensated. It provides draft paystubs to employees on the Monday following the end of the pay period ending on the previous Saturday and requires employees to submit payroll tickets to report any errors with the paystub. If the report of the necessary correction is received in time, the correction is made on the upcoming payroll. Otherwise, the correction is made on the subsequent payroll. 7. Defendant has or has had projects in various parts of Texas, including the regions referenced in the Declarations of Jayme Peery, Vernon Heath III, Ashton Neal, John Swinner and William Swinner (Waco/Hillsboro, Madison and Walker Counties, Bastrop, San Jacinto County, San Angelo, Houston, Crystal City, Denton, Corpus Christi, and Fairfield) and other regions (Helmcamp, Ellis, Bryan, Austin, Polk, San Antonio, Yoakum, Fort Worth, Pharr, and El Paso). Depending on the location of the job site and where employees live, some or all of the employees working on a particular job site may stay at a hotel or motel ("lodging facility"). This varies from project to project and from employee to employee. Because Defendant's workforce works across Texas, Defendant relies on its individual Supervisors to ensure compliance with its policies. I was the Supervisor for Jayme Peery, Vernon Heath III, Ashton Neal, John Swinner and William 4838-0669-5322.3 Swinner. During their employment, Jayme Peery, Vernon Heath, John Swinner and William Swinner also reported to other Supervisors. 8. Generally speaking, Flaggers, Drivers and Crew Leaders working on TxDOT jobs are required to report to either a TxDOT office or directly to their job site at a specific time, which required meeting site may vary by job. These employees have the choice of either: (1) driving personal vehicles to the TxDOT office or job site; or (2) meeting an employee who has a company vehicle at that employee's home or lodging facility and receiving a courtesy ride to the TxDOT office or job site. Employees who receive courtesy rides have no duties until they arrive at the required meeting site. 9. Employees are not required to conduct safety inspections without being paid for such activities. I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. Executed on this 14th day of June, 2019. seene topalter TEENA FOGARTY 4838-0669-5322.3