Peery v. Nixon Engineering,llc

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

Exhibit Decl. of J. Swinner

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Exhibit 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION JAYME PEERY, § Individually and on behalf of all others § similarly situated § Civil Action No. 6:2018-cv-00358-AA § § Plaintiff, § JURY TRIAL DEMANDED § v. § COLLECTIVE ACTION § PURSUANT TO 29 U.S.C. §216(b) NIXON ENGINEERING, LLC, § § CLASS ACTION PURSUANT TO Defendant. § FED. R. CIV. P. 23(b) DECLARATION OF JOHN SWINNER I, John Swinner, being of sound mind and over the age of 18, make the following declaration: 1. My name is John Swinner and the facts contained in this declaration are within my personal knowledge and are true and correct. 2. I worked for Nixon Engineering, LLC ("Nixon" or "Defendant") as a non-exempt Crew Lead in Bastrop, Texas and San Jacinto County. I was employed by Nixon from approximately April 5, 2018 until April 7, 2019. 3. As a Crew Lead, I would perform pre-route vehicle inspections, ensure we had all our tools and equipment before heading to the work site, drive the company truck to the work site, help set up road cones and strips, set up the truck mounted attenuator, and assist in flagging and controlling road traffic at the job site. 4. During the time I worked for Nixon, I typically worked twelve (12) hours a day. I worked approximately sixty (60) hours per week, but I was only paid for approximately forty (40) hours of work. Declaration of J. Swinner Page 1 5. I was required, as part of my employment with Nixon, to work overtime hours and did work overtime hours on a regular basis. 6. I know from my own personal observations and from speaking with my coworkers, that they were also required to work overtime hours on a regular basis. 7. Nixon required my entire crew of about three (3) to five (5) people to meet at different hotels across Texas depending on where the worksite was. I have met my crew at hotels for jobs in places such as Waco, San Angelo, Houston, or Crystal City, Denton, Corpus Christi, and Fairfield, Texas. Once we arrived at the hotel, we would perform a twenty (20) minute vehicle inspection. We would check the vehicle's fluids, tires, and ensure we had all of our equipment needed for the day. 8. After completing the vehicle inspection, we all rode in the truck together to the Texas Department of Transportation ("TX DoT") office that was nearest to the worksite. Depending on where the worksite was, our drive to the Texas DoT office could take anywhere from thirty (30) minutes to over two hours. 9. Only after arriving at the TX DoT office and checking in with TX DoT would my coworkers and I be clocked in. We never clocked ourselves in, Nixon would only pay my coworkers and I for the hours TX DoT reported to them. The pre-trip vehicle inspection, and the drive from the hotel to the TX DoT office was always performed "off-the-clock." 10. After checking in at the TX DoT office, my coworkers and I would load back into the truck and drive to the traffic control project. A traffic control project is an area of road-way under construction that needs traffic controllers–my coworkers and I–to manage traffic so that the construction crews are safe. 11. Around 4:30 p.m. the TX DoT employees would tell my coworkers and I to clean up, pick up the traffic cones and other equipment, and that we were done for the day. TX DoT would give us twenty (20) minutes to clean up and then they would clock us out, that is they would write in Declaration of J. Swinner Page 2 the report they would submit to Nixon that we had finished work at that time. We rarely, if ever, finished cleaning up in twenty (20) minutes. Most of the time, it would take us forty (40) minutes to an hour to clean up, depending on how big the traffic control project was. 12. Even though TX DoT had clocked us out, Nixon required us to finish cleaning up "off-the-clock." My coworkers and I, who were on-site together, told other Nixon representatives at the office that we rarely finished clean-up in twenty (20) minutes. We told Nixon that we should be paid for all the time it took to clean up, but they would tell us that we were not going to be paid for any time other than what TX DoT reported and that we should just try to clean up faster. 13. Once my coworkers and I finished cleaning up, we would drive back to the hotel we met up at earlier that morning. Once we arrived, per Nixon's requirements, we would refuel the truck, check its fluids, and make sure all of our equipment was properly secured so that none of it would be stolen during the night. Only after performing these duties would our Nixon Supervisor release us for the day. 14. I regularly talked to the Supervisor and to the owners of Nixon itself that I thought it was unfair that my coworkers and I were not paid for the time we spent: inspecting the vehicle in the morning, driving to the TX DoT office, all the time required to pick up the equipment, the drive back to the hotel, and the time it took to perform the post-route inspection. Whenever I spoke with the owners of Nixon, they would tell me the missing hours would be on my next check. Even though the owners of Nixon would tell me I was going to be paid for the "off-the-clock" work, they never fulfilled their promise and they never paid me for that time. 15. I know from my own personal observations and from talking with my coworkers that they performed the same or similar work to me, worked a similar schedule to me, and were paid for similar hours to me. That is, they were only paid for the hours TX DoT wrote down and not for the actual number of hours worked, if we were paid at all. Declaration of J. Swinner Page 3 16. Throughout my employment as a Crew Lead for Nixon, I was paid an hourly wage. Specifically, I was paid $13.64 per hour. 17. Although I regularly worked in excess of forty (40) hours per week, Nixon did not pay me for all of my overtime hours worked. 18. I know from speaking with my coworkers, that they were also paid an hourly wage and that they too were not paid the correct amount of overtime. I know that Nixon was aware of all the "off-the-clock" work my coworkers and I performed because the Nixon Supervisor would personally observe us and order us to work "off-the-clock" and because I would report the "off-the-clock" work to Nixon. The owners of Nixon would join us on big jobs and also observe us and order us to perform work "off-the-clock." 19. Nixon subjected my coworkers and me to the same or substantially similar policies, discussed above. 20. Based on my conversations with other hourly Nixon employees, I know that they would be interested to learn that they may recover unpaid overtime from Nixon and that they would want to opt-in to this lawsuit. Everyone I have talked to about this case has asked how to join and has consented to join this case. 21. I declare under penalty of perjury that the foregoing is true and correct. Jun 3, 2019 Executed on: _______________________ John Swinner John Swinner (Jun 3, 2019) JOHN SWINNER Declaration of J. Swinner Page 4