Labor & Employment Law Daily Wrap Up, DISCRIMINATION—D. Utah: Court conditionally certifies FLSA overtime collective against Utah copper company, (Jul 15, 2026)

By Jason Albright, J.D.

An employee alleged the company does not include shift differentials and non-discretionary bonuses in its calculations for overtime purposes.

A haulage operator for Kennecott Utah Copper LLC is entitled to conditional certification of an FMLA collective of all current and former hourly employees of the copper mining company who, during the past three years, were paid a nondiscretionary bonus and/or shift differential that was not included in their regular rate of pay for overtime calculation purposes, a federal district court in Utah determined. All employees within the proposed class are paid according to a labor contract, giving rise to a single, uniform policy that makes the proposed class similarly situated, the court found (Bascom v. Kennecott Utah Copper LLC, No. 2:25-cv-00505-DBB-JCB (D. Utah July 13, 2026)).

Copper mine. Kennecott, according to the court, is a “world-class, integrated copper mining operation headquartered in South Jordan, Utah.” It has employed the plaintiff as a haulage operator since 2021, and he and other allegedly similarly situated Kennecott employees frequently work more than 40 hours a week.

Compensation scheme. Kennecott pays him and the other employees an hourly wage and other non-discretionary bonuses, such as production and safety bonuses and shift differentials. It pays the employees overtime at 1.5 times their hourly wage, but the operator alleges that Kennecott does not include the shift differentials and non-discretionary bonuses in its calculations for overtime purposes.

Labor contract. The terms of his pay and that of other similarly situated employees are set by a labor contract between Kennecott and a union.

Lawsuit. On June 24, 2025, the haulage operator sued Kennecott for failing to pay overtime as required under the FLSA. He alleges that the FLSA requires Kennecott to include the shift-differential and non-discretionary bonuses as part of employees’ regular rates of pay for overtime purposes.

Kennecott’s letter to employees. On or around May 1, 2026, Kennecott sent a letter to its employees informing them of the lawsuit. The letter advised employees that the haulage operator’s counsel had requested their personal information. It explained that employees could choose whether to speak with any attorneys about the case, outlined certain “rights” regarding contacts from the plaintiff’s counsel, and directed employees to come to HR with any questions.

Conditional certification. The haulage operator moved for conditional certification and court-authorized notice, which the court granted. He proposed certifying a class of “[a]ll current and former hourly Kennecott employees who were paid a nondiscretionary bonus and/or shift differential during the past three years (the ‘Hourly Employees’).”

To show that all these hourly employees are “together the victims of a single decision, policy, or plan,” the court observed, the operator noted that they are all governed by the same labor contract, and he provided declarations from current or former employees asserting that the hourly employees are all similarly paid with shift differentials and incentive bonuses. Kennecott, in turn, did not dispute these facts, and the court thus found that the plaintiff met his lenient burden to substantially allege that the hourly employees were victims of a single policy. “[T]he CBA is a single, uniform policy that makes the proposed class similarly situated.”

No LMRA preemption. Nor did LMRA preemption apply, according to the court. LMRA preemption applies when “evaluation of the... claim is inextricably intertwined with consideration of the terms of the labor contract[.]” Here, the operator did not allege any violation of the labor contract, nor did his claim require interpreting the contract, according to the court. “The CBA is the basis for [his] and the proposed class’s pay, but it is the actual amount of overtime being paid that is challenged, not Kennecott’s interpretation of the CBA.”

Plaintiff’s additional requests. Approving notice of the lawsuit to the proposed collective, the court nonetheless denied the plaintiff a requested blanket order “[p]rohibiting Kennecott from communicating with putative collective members” or retaliating against them, which the court noted is already prohibited by federal law. The court further denied the plaintiff a requested corrective notice regarding five allegedly inaccurate or misleading statements that Kennecott’s previously made in a letter informing employees of the litigation; declined the plaintiff’s request to host an informational meeting at Kennecott during work hours; and denied his requested order for Kennecott to produce information about who its letter was sent to, who was spoken with about the letter, who responded to the letter, and who was involved in creating the letter. Finally, the court denied the plaintiff’s request for attorney fees.

The case is No. 2:25-cv-00505-DBB-JCB.

Judge: Barlow, D.

Attorneys: Alyssa J. White (Josephson Dunlap) for Austin Bascom. Kody Lynn Condos (Holland & Hart) for Kennecott Utah Copper LLC.

Companies: Kennecott Utah Copper LLC

Cases: WageHour ClassActions Overtime WorkingTime Labor EvidenceDiscovery AttorneysFees UtahNews