Peery v. Nixon Engineering,llc

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

Exhibit Decl. of V. Heath III

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Exhibit 2 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 VERNON HEATH III I, Vernon Heath III, being of sound mind and over the age of 18, make the following declaration: 1. My name is Vernon Heath and the facts contained in this declaration are within my personal knowledge and are true and correct. 2. I have worked for Nixon Engineering, LLC ("Nixon" or "Defendant") as a non- exempt Flagger around Maddisville, Texas since approximately February 2018. 3. As a Flagger 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, if not more, but I was only paid for approximately forty (40) hours of work. Declaration of V. Heath III 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 four (4) people to meet at a hotel near the worksite. Sometimes we would all stay at the hotel together and sometimes I would stay at my house and meet up with them, if they were staying near my house. Nixon required my coworkers and I to be at the hotel by 6:30 a.m. Once we arrived at the hotel, we would perform a fifteen (15) to 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 near the worksite. Our worksites changed over time and worked in different parts of Texas. The drive could take anywhere from twenty (20) minutes to one hour to get to the TX DoT office from the meeting spot. It all depended on where in Texas we were. We would arrive at the TX DoT office around 7:00 or 7:30 a.m. 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. Declaration of V. Heath III Page 2 11. Around 4:30 or 5:00 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 a little time to clean up and then they would clock us out, that is they would write in the report they would submit to Nixon that we had finished work at that time. We did not always finish cleaning up in the time they gave us before they clocked us out. 12. Even when TX DoT clocked us out before we finished cleaning up, Nixon required us to finish cleaning up "off-the-clock." Nixon knew we had to finish cleaning up "off-the-clock" because our Nixon supervisors were on-site and witnessed us cleaning up after TX DoT employees told us we had been clocked out. 13. Once my coworkers and I finished cleaning up, we would drive back to the hotel the crew was staying at. Once we arrived at the hotel, 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 Crew Leader release us for the day. 14. I regularly talked to the Crew Leader and to 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 we told Nixon about this unpaid work, they would always just tell us that its non-compensable time and that we were not going to be paid for it. 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 as I was. That is, they were only paid for the hours TX DoT wrote down and not for the actual number of hours worked. Declaration of V. Heath III Page 3 16. Throughout my employment as a Flagger 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 Crew Leader would personally observe us and order us to work "off-the-clock" and because I would report the "off-the- clock" work to Nixon. 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. 21. I declare under penalty of perjury that the foregoing is true and correct. Jun 3, 2019 Executed on: _______________________ Vernon Heath III Vernon Heath III (Jun 3, 2019) Vernon Heath III Declaration of V. Heath III Page 4