Class action alleges Valero shorted workers on overtime pay

David Yates Apr. 21, 2008, 8:58am

Beaumont's Reaud, Morgan & Quinn law firm launched a new class action against Valero Energy, alleging the oil giant circumvented paying its contractors overtime by classifying workers' wages as "per diem."

The suit was filed on April 18 in Jefferson County District Court on behalf of class representative Ruston Benoit. The suit also names Bay Ltd. as a defendant.

Benoit, and all those similarly situated, allege Valero and Bay "wrongfully and artificially" classified their weekly wages as a "per diem" or per-day pay to avoid paying them time-and-a-half, according to the suit.

Benoit worked for Bay as an electrical technician from March 31 through April 8 and suit claims Benoit worked "in excess of 40 hours per week." According to the suit, under the Fair Labor Standards Act, those hours were overtime and subject to compensation at one and one-half times the worker's regular rate.

"Defendant artificially and knowingly attempted to characterize a weekly payment as a 'per diem,' not subject to payment at a rate of time-and-a-half. Therefore, instead of paying full wages of time-and-a-half for overtime, Defendant was able to pay less than that amount through the artifice of paying a 'per diem,'" the suit says.

"Bay's actions have amounted to a willful violation of the Fair Labor Standards Act, for which recovery is allowed under Federal Law."

The suit also alleges Bay agreed to pay $55.00 per day "per diem", but failed to do so. "Such failure constitutes a breach of contract."

Although Bay employed Benoit, the class representative contends Valero "planned the manner in which Plaintiff was hired and the terms and conditions of his employment and the decision to improperly characterize wages as 'per diem' and failed to pay the promised per diem," the suit says.

"As such, Defendant Valero is jointly and severally liable for the damages incurred by Plaintiff and the Class."

Benoit and the class members claim they are entitled to their unpaid overtime wages at one-and-one-half times their true regular rate.

"Plaintiffs are additionally entitled to an additional equal amount as liquidated damages resulting from Defendant's willful violation of the FLSA. Plaintiffs are entitled to recover their attorney's fees, and pre-judgment and post- judgment interest on all damages," the suit says.

Attorney John Werner is representing the class.

The case has been assigned to Judge Donald Floyd, 172nd Judicial District.

Case No. E181-622

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