Opinion
2:21-cv-01117-GJF-JHR
05-19-2023
Javier Silva, individually and on behalf of all others similarly situated, Plaintiff v. Agave Transportation Services, Inc., Defendant
NOTICE OF UNPAID OVERTIME LAWSUIT
TO: All current and former New Mexico hourly paid truck driver employees who worked for Defendant, and who like Plaintiff, allege they were not paid time and one-half their respective rates of pay for all hours worked over in each seven-day workweek for the time period of three years preceding the date this lawsuit was filed and forward.
RE: Collective action lawsuit seeking unpaid overtime and back wages.
DEADLINE TO RETURN CONSENT FORM:___, 2023
This date will be 60 days after the day the notice is mailed/emailed/texted.
1. Why Are You Getting This Notice?
You received this notice because the court in charge of this collective action lawsuit ordered this Notice to be sent to persons who are identified by Agave Transportation Services, Inc.'s (Agave) records as New Mexico truck drivers performing work on behalf of Agave who were hourly paid at any time in the last three years.
The Court has allowed or “certified” a collective action lawsuit that may affect your legal rights. This notice is intended to advise you of how your rights under the Fair Labor Standards (FLSA) may be affected by this lawsuit and describe how you can participate in this collective action. The Court has taken no position regarding the merits of the claims or defenses at issue.
2. What Is This Lawsuit About?
Javier Silva, a former Agave New Mexico truck driver, filed this collective action lawsuit on behalf himself and other New Mexico truck drivers employed by, or working on behalf of, Agave who allege they were paid straight time for overtime for all hours over 40 and up to 50 in a workweek. Mr. Silva alleges that Agave violated a federal law known as the FLSA, which requires employers to pay overtime compensation to employees who work more than 40 hours in a week, unless the employees are “exempt.” Mr. Silva contends that Agave did not pay the affected employees time and a half compensation for the hours they worked over 40 hours in a workweek and up to 50. FLSA, 29 U.S.C. § 201,et seq. Instead, Mr. Silva alleges that Agave paid these workers at the same hourly rate (i.e., “straight time”) with no overtime compensation for all hours worked. Mr. Silva seeks back wages in the form of unpaid overtime, liquidated damages, plus attorneys' fees, and costs for himself and all other similarly situated workers.
Agave denies Mr. Silva's allegations and has asserted various defenses. Agave contends it properly paid its New Mexico truck drivers.
The Court has not ruled which party will prevail in this lawsuit but has ordered this notice be sent to you to inform you of your legal rights and ability to make a claim for unpaid overtime wages. Should Mr. Silva prevail in this lawsuit, you may recover damages for unpaid overtime worked during the period of November 18, 2018, to the present. The relevant time period for your claim will be calculated based on the date you return a completed Consent to Join Wage Claim Form, which is attached to this Notice.
3. Are You Eligible to Join This Lawsuit?
You are eligible to join this lawsuit if:
1: You worked for Agave at any time from November 18, 2018, to the present;
AND
2: You were a New Mexico truck driver for Agave;
AND
3: You were not paid time and one-half for all hours worked over forty in each seven-day workweek for the time period of November 18, 2018, to the present date.
4. What Are Your Options?
If you want to join this lawsuit and make a claim for unpaid overtime wages, you must read, sign, and return the attached Consent to Join Wage Claim Form by ___, 2023. You may return your Consent to Join Wage Claim Form by filling out the attached form and returning it by mail, email, or fax to:
60 days from notice.
Overtime Lawsuit Against Agave (Silva) (INSERT THIRD PARTY ADMIN INFO)
Instead of contacting the above counsel, you may also contact counsel of your choice.
If you do not wish to be a part of the collective action lawsuit, you do not need to do anything. The decision to join is entirely yours.
5. Effect Of Making A Claim For Unpaid Overtime Wages
If you return a Consent to Join Wage Claim Form, you will be part of the case. Therefore, if the individuals who brought this case wins or settles the case, you may receive additional money from Agave.
Because the FLSA only allows workers to recover up to the past three (3) years of back wages, eligible workers who do not timely join this litigation by returning a Consent to Join Wage Claim Form may lose their rights to recover overtime for work performed in the past for Agave.
6. Retaliation And Blackballing Is Prohibited
This Court and Federal law prohibit anyone from firing or in any other way blackballing or discriminating against you because you join this case. Agave has agreed to abide by the law in this regard.
7. Your Legal Representation If You Join
If you choose to join this collective action lawsuit by submitting the Notice of Consent attached to this Notice, you are agreeing to be represented by Mr. Javier Silva's attorneys, and your attorneys in this action will be Ricardo J. Prieto and Melinda Arbuckle of Wage and Hour Firm. Their contact information is listed below.
8. How Can You Receive More Information?
If you have any questions about the collective action or your legal rights, you should contact counsel for the class of Agave's New Mexico truck drivers directly at:
Ricardo J. Prieto
Melinda Arbuckle
WAGE AND HOUR FIRM
5050 Quorum Drive, Suite 700
Dallas, Texas 75254
Telephone: (979) 220-2824
Fax: (469) 319-0317 rprieto@wageandhourfirm.com marbuckle@wageandhourfirm.comYou should not contact the Court to discuss this matter.
9. You Have Sixty (60) Days To Join This Lawsuit.
Your determination of whether or not to take action should be made promptly. The law only allows a person to recover up to three (3) years of back wages from the date the Consent to Join Wage Claim Form is filed. All consent forms must be received no later than ____, 2023, which is sixty (60) days after this Notice was mailed to you. A Consent to Joint Wage Claim Form is enclosed with a self-addressed stamped envelope.
E-MAIL MESSAGE TO POTENTIAL CLASS MEMBERS
Subject: Notice of unpaid overtime collective action lawsuit against Agave
Dear Agave New Mexico truck driver:
Attached is the Court-authorized Notice regarding a collective action lawsuit against Agave alleging you were not paid overtime compensation as required by a federal law known as the Fair Labor Standards Act (FLSA). You are receiving this message because Agave's records indicate you arc eligible to participate in this collective action lawsuit seeking to recover unpaid overtime wages and your rights may be affected by its outcome. The attached Notice explains the steps you need to take if you want to join. You can review and sign the forms to join the case here. <hyperlink».
If you have any questions, please feel free to contact me at «phone» or by e-mail at «email».
<Signature Block»
TEXT MESSAGE TO POTENTIAL CLASS MEMBERS
Dear Agave New Mexico truck driver:
In the link below is the Court-authorized Notice regarding a collective action lawsuit against Agave alleging you were not paid overtime compensation as required by a federal law. Agave's records indicate you are eligible to participate in this collective action lawsuit seeking to recover unpaid overtime wages and your rights may be affected by its outcome. The Notice explains the steps you need to take if you want to join. You can review and sign the forms to join the case here <hyperlink».
If you have any questions, please feel free to contact me at <phone» or by e-mail at <email».
CONSENT TO JOIN WAGE CLAIM AGAINST AGAVE
Print Name: ___
1. I hereby consent to participate in a collective action lawsuit styled Silva v. Agave Transportation Services, Inc. (the Lawsuit) to pursue my claims of unpaid overtime under the Fair Labor Standards Act (FLSA) during the time that I worked with for Agave.
2. I understand that this lawsuit is brought under the FLSA, and I consent to be bound by the Court's decision.
3. I designate the law firm and attorneys at WAGE AND HOUR FIRM, and any other law firm(s) which they may associate with, as my attorneys to prosecute my wage claims.
4. I consent to having Plaintiff and Plaintiff's Counsel make all decisions regarding the litigation, including the method and manner of conducting this litigation, the terms of any potential settlement of this litigation, releasing of claims, entering into an agreement with Plaintiff's Counsel regarding attorneys' fees and costs, and all other matters pertaining to this lawsuit.
5. If needed, I authorize the Plaintiff's lawyers to use this consent to re-file my claim in a separate lawsuit or arbitration against the Defendants.
Signature: ____ Date Signed: ___
Please print or type the following information which will be kept confidential:
___Address ___City/State/Zip
___Home Telephone Number ___Cell Phone Number
___E-mail Address ___Estimated Dates of Employment
___Positions Held with Agave ___Locations Worked for Agave