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Harris v. Express Courier International, Inc.

United States District Court, W.D. Arkansas, Fayetteville Division

September 19, 2016

JAMES HARRIS; RICK KETCHAM; and ADAM MANSKE, Each Individually and on Behalf of Others Similarly Situated PLAINTIFFS



         Before the Court are Plaintiffs' Motion for Conditional Certification of Collective Action, for Disclosure of Potential Opt-in Plaintiffs' Contact Information, and to Send Court-approved Notices (Doc. 24) and Brief in Support (Doc. 25); Defendant's Response in Opposition (Doc. 30) and Brief in Support (Doc. 31); and Plaintiffs' Reply (Doc. 32). The Court held a hearing on Plaintiffs' Motion for Conditional Certification on July 14, 2016, with counsel and representatives from the parties present for oral argument on the Motion. As explained in further detail in this Order, Plaintiffs' Motion (Doc. 30) is GRANTED.

         I. BACKGROUND

         Plaintiffs James Harris, Rick Ketcham, and Aaron Manske, on behalf of themselves and others similarly situated, move the Court for conditional certification of a collective action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). The FLSA is a federal statute governing minimum wages, maximum hours worked, and overtime compensation. The statute allows an action to be brought "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). This type of lawsuit requires that each potential plaintiff "opt in, " or "give his consent in writing to become such a party" to a collective claim for unpaid wages. Id.

         Plaintiffs are former drivers/couriers of Defendant Express Courier International, Inc., doing business as LSO Final Mile ("LSO"). LSO is a company that facilitates the delivery of products for the medical, financial, and retail industries, through the work of drivers/couriers who actually perform these deliveries. LSO offers same-day, on-demand, and scheduled delivery services in ten different states. According to Plaintiffs, LSO has misclassified its drivers/couriers as independent contractors, when they really should be classified and paid as employees, and LSO has failed to pay their drivers/couriers overtime compensation for all hours worked over 40 per week. Plaintiffs ask the Court to conditionally certify the following FLSA class:

Each individual who (a) worked for Express Courier International, Inc. ("Express"), as a driver, courier, or owner-operator any time after February 11, 2013, (b) never subcontracted any of his or her work for Express, and (c) contracted directly with Express under Express's standard "Owner-Operator Agreement."

         In the Motion, Plaintiffs argue that they share with their fellow LSO drivers/couriers the following characteristics: (1) they were uniformly classified by LSO as independent contractors and were not paid overtime compensation; (2) they were required to sign the same "Owner-Operator Agreement"-which states that drivers/couriers are considered independent contractors-before they were permitted to make deliveries for the company; (3) they were subject to the same corporate-level policies, procedures, and training programs; (4) they were subject to a common policy of local control; and (5) they were subject to common policies regarding pay.[1] According to Plaintiffs, LSO's "common policies" include: (1) requiring all drivers/couriers to use communication equipment compatible with LSO's operating system, (2) testing drivers/carriers randomly for drugs and alcohol, (3) requiring drivers/couriers to obtain written permission from LSO before driving for other carriers, (4) requiring drivers to wear photo ID badges and follow a dress code, (5) checking drivers'/couriers' motor vehicle reports annually, (6) requiring drivers to keep their vehicles clean, and (7) requiring drivers to cede any authority they might have otherwise had to LSO to investigate any delays, shortages, misdeliveries, and claims related to lost, damaged, or contaminated loads.

         For its part, LSO denies that it has wrongly classified its drivers/couriers at its locations, as LSO believes they are independent contractors, not employees. Further, LSO contends that its drivers/couriers are not similarly situated to one another, such that it would be inefficient and inappropriate to group them into a single class for collective action purposes. LSO points out that drivers/couriers possess "a kaleidoscope of differences... that are not capable of resolution in a 'one size fits all' basis." (Doc. 31, p. 7). LSO also believes that if the Court conditionally certified Plaintiffs proposed class, the Court would be required to engage in an individualized analysis of each class member's case. This is because, according to LSO, its drivers/couriers differ as to: (1) how they are compensated, depending on the customer/route and difficulty/sensitivity of the work, (2) whether they have successfully negotiated their own compensation plans with the company or not, (3) whether they personally perform deliveries or hire others to do so for them, (4) whether they incorporate or operate as sole proprietorships, (5) which type of vehicles they drive and whether they invest in equipment for their vehicles, and (6) the degree of interaction they have with LSO management. In addition, LSO points out that all drivers/couriers decide for themselves when they will work, what deliveries they will make, and what sorts of customers they will have.

         LSO devotes significant attention in its briefing to explaining how its delivery operations function from location to location. It explains, for example, that a driver performing delivery services in Paducah, Kentucky, would arrive at an LSO warehouse staffed by LSO employees and would operate a cargo van to deliver products during a set delivery window to hospitals and drug stores. By contrast, a driver in Greenville, South Carolina, would arrive at a secure building that is not staffed by LSO employees and would input a code to gain access to the building. The Greenville driver would then load the deliveries onto whatever vehicle he felt was appropriate, and then contact each customer to schedule the delivery time. See Doc. 31, p. 12.

         LSO also points out that it would be very difficult to calculate classwide damages without receiving individual testimony from each driver/courier, as some individuals work part-time, while others work full-time, and they each maintain their own records of how many hours they have driven for the company. Moreover, LSO disagrees that it provides any standardized training to its drivers/couriers, or that it imposes a uniform dress code on drivers/couriers nationwide. LSO's final argument is that many of its company policies applicable to drivers/couriers are only in place to meet governmental regulations regarding motor carrier safety (for example, the random drug and alcohol screenings and the motor vehicle report checks). Therefore, LSO maintains that these cannot be considered true "company policies" for purposes of evaluating whether potential class members are similarly situated.


         The Eighth Circuit has not yet announced standards that district courts must use in evaluating collective actions pursuant to the FLSA. Resendiz-Ramirez v. P&H Forestry, LLC, 515 F.Supp.2d 937, 940 (W.D. Ark. 2007). In the absence of such guidance, numerous district courts in this Circuit, including this Court, have approved of the procedures announced in the Fifth Circuit case of Mooney v. Aramco Services Co., which establishes a two-step process for certifying a collective action. 4F.3d 1207, 1212 (5th Cir. 1995) overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); Aaron v. Summit Health and Rehab., LLC, 2014 WL 1095829, at *2 (W.D. Ark. Mar. 19, 2014) (citing Mooney for the prevailing approach used by federal courts in certifying collective actions); Garrison v. ConAgra Packaged Foods, LLC, 2013 WL 1247649, at *1 (E.D. Ark. Mar. 27, 2013) (same); Shackleford v. Cargill Meat Solutions Corp., 2013 WL 209052, at *1 (W.D. Mo. Jan. 17, 2013) (same); Burch v. Qwest Commc'ns Int'l, Inc., 677 F.Supp.2d 1101, 1114 (D. Minn. 2009) (same).

         The two-step process described in Mooney involves a progressively more rigorous analysis as to whether a putative class of plaintiffs is "similarly situated, " as described in § 216(b) of the FLSA, and thus suited for the collective action model as a means of efficiently litigating their claims. Mooney labels the first step in the inquiry as the "notice stage" and the second step as the "decertification stage, " as follows:

The first determination is made at the so-called "notice stage." At the notice stage, the district court makes a decision-usually based only on the pleadings and any affidavits which have been submitted-whether notice of the ...

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