Hilda L Solis v. Shippers Transport Express, Inc.

Filing 146

CONSENT JUDGMENT and ORDER by Judge Beverly Reid O'Connell. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that pursuant to Section 17 of the FLSA, Defendant Shippers Transport Express, Inc., its officers, agents, servants, employees, successor com panies, and all persons in active concert orparticipation, including but not limited to Guy Sanderson, Kevin Baddeley, and Edward DeNike with them be, and they hereby are, permanently enjoined and restrained. FURTHER ORDERED that Defendant shall make payments to the Wage Hour Division of the United States Department of Labor of $94,293.64, which constitutes unpaid minimum wage compensation and pertinent reimbursements for weeks during which minimum wage violations were found due for the Sub ject Period to those current and former employees of Defendant named in Exhibit A, attached hereto and made a part hereof plus an additional equal amount of $94,293.64 as statutorily authorized liquidated damages for a total of $188,587.28 . Each party shall bear all fees and other expenses (including court costs and attorney's fees) incurred by such party in connection with any stage of this proceeding. FURTHER ORDERED that this Court shall retain jurisdiction of this action for purposes of enforcing compliance with the terms of this Consent Judgment for five years. (MD JS-6. Case Terminated.) (jp)

JS-6
1
2
3
4
5
6
7
8
9
10
11

JANET M. HEROLD
Regional Solicitor
SUSAN SELETSKY
Counsel for FLSA
JEREMIAH E. MILLER (WSBA 40949)
Senior Trial Attorney
GRACE A. KIM (CSBN 247456)
Trial Attorney
NATALIE NARDECCHIA (CSBN 246486)
Trial Attorney
United States Department of Labor
Office of the Solicitor
350 S. Figueroa St., Suite 370
Los Angeles, CA 90071
Phone [phone]
Fax [phone]
[e-mail]
Attorneys for Plaintiff, Thomas E. Perez,
Secretary, U.S. Department of Labor

12
13

UNITED STATES DISTRICT COURT FOR THE

14

CENTRAL DISTRICT OF CALIFORNIA

15
16
17
18
19
20
21

) HON. BEVERLY REID O’CONNELL
)
) Case No. 2:13-CV-04255-BRO-PLA
)
Plaintiff,
) CONSENT JUDGMENT & ORDER
)
v.
)
)
SHIPPERS TRANSPORT EXPRESS, )
INC., a corporation,
)
)
Defendant.
)
)

THOMAS E. PEREZ, Secretary of
Labor, United States Department
of Labor,

22
23

Plaintiff, THOMAS E. PEREZ, Secretary of Labor, United States Department of

24

Labor (“Plaintiff” or the “Secretary”), and Defendant Shippers Transport Express, Inc.

25
26
27

(“Defendant” or “Shippers”) have agreed to resolve the matters in controversy in this
civil action and consent to the entry of this consent judgment (“Consent Judgment” or
“Judgment”) in accordance herewith.

28

CONSENT JUDGMENT & ORDER

Page 1 of 33

1
2
3

I.

ADMISSIONS BY THE PARTIES:
A. The Secretary has filed a Complaint alleging that Defendant violated

4

provisions of Sections 6, 11(c), 15(a)(2) and (5) of the Fair Labor Standards

5

Act of 1938, as amended (“FLSA” or the “Act”), 29 U.S.C. §§ 206, 211(c),

6
7
8
9
10
11
12
13
14
15

215(a)(2) and (5).
B. Defendant acknowledges receipt of a copy of the Secretary’s Complaint.
C. Defendant agrees herein to resolve all allegations of the Secretary’s Complaint.
D. Defendant admits that the Court has jurisdiction over the parties and subject
matter of this civil action and that venue lies in the district court for the Central
District of California.
E. Defendant and the Secretary agree to the entry of this Consent Judgment
without contest.
F. Defendant acknowledges that Defendant and any individual or entity acting on

16

its behalf or at its direction (including but not limited to Edward DeNike,

17

Defendant’s President, as well as Defendant’s management personnel at its

18

Oakland facility, including General Manager Guy Sanderson, Operations

19

Manager Maria Banales, Ja’Quita Carter, Lavita Jackson, and Dispatchers

20

Kelvin Pham and Byron Trujillo) have notice of, and understand, the

21

provisions of this Consent Judgment.

22

G. Defendant admits that it has been a trucking and freight transportation

23

company that arranges for and transports containerized goods arriving and

24

departing on ocean vessels via ports, including the Port of Oakland.

25
26
27

H. Defendant admits that it employed drivers who leased trucks from Defendant
and who then were engaged in its transportation business through Defendant’s
dispatchers transporting, shipping, and/or delivering goods to and from the

28

CONSENT JUDGMENT & ORDER

Page 2 of 33

1

Port of Oakland (“Drivers”). Defendant admits that since at least August 20,

2

2009, the truck drivers with Defendant were and are engaged in commerce or

3

in the production of goods for commerce within the meaning of the FLSA.

4

I. Defendant admits that since at least August 20, 2009, it has been a California

5

corporation engaged in related activities performed through unified operation

6
7
8
9
10
11
12
13

or common control for a common business purpose in California, and has been
an enterprise within the meaning of Section 3(r) of the FLSA, 29 U.S.C. §
203(r).
J. Defendant admits that since at least August 20, 2009, it has been an enterprise
engaged in commerce or in the production of goods for commerce within the
meaning of Sections 3(s)(1)(A) of the FLSA, 29 U.S.C. § 203(s)(1)(A); in that
it has employees who have been engaged in commerce or the production of

14

goods for commerce, or in handling, selling, or otherwise working on goods or

15

materials that have been moved in or produced for commerce by any person,

16

and is an enterprise whose annual gross volume of sales made or business done

17

is not less than $500,000.

18

K. Defendant admits that on at least some occasions, it has misclassified Drivers

19

as independent contractors rather than as employees (“Misclassified

20

Employees”).

21

L. Defendant understands and expressly acknowledges that the provisions and

22

safeguards guaranteed under the FLSA to employees, including but not limited

23

to those found in Sections 6, 11(c), 15(a)(2), 15(a)(3), and 15(a)(5), apply to

24

the Misclassified Employees.

25
26
27

M. Defendant admits that on at least some occasions it has violated Sections 6 and
15(a)(2) of the FLSA by paying the Misclassified Employees wages at rates
less than the applicable federal minimum wage in workweeks when said

28

CONSENT JUDGMENT & ORDER

Page 3 of 33

1

employees were engaged in commerce or in the production of goods for

2

commerce or were employed in an enterprise engaged in commerce or in the

3

production of goods for commerce, within the meaning of the FLSA.

4
5
6
7
8
9
10
11
12
13

N. Defendant admits that on at least some occasions it has violated Sections 11(c)
and 15(a)(5) of the FLSA by failing to make, keep and preserve records of the
Misclassified Employees and of the wages, hours, and other conditions and
practices of employment maintained by them as prescribed by the regulations
found in 29 C.F.R. Part 516 that are issued, and from time to time amended,
pursuant to Section 11(c) of the FLSA.
O. Defendant admits and agrees that it will reclassify all Misclassified Employees
and any other present or future Drivers at its Oakland facility (or any future
facility should the current Oakland facility cease operations), as well as all

14

drivers at Defendant’s other California facilities (including its facility located

15

in Carson, California, or any future facility should the current Carson facility

16

cease operations), as employees by no later than sixty (60) calendar days from

17

the date of entry of this Consent Judgment.

18

P. Defendant understands and expressly acknowledges that demanding or

19

accepting any of the monies due to any employees under the terms of this

20

Consent Judgment, threatening any employee for accepting monies due under

21

this Consent Judgment, or threatening any employee for exercising any of his

22

or her rights under the FLSA is specifically prohibited and may subject

23

Defendant to equitable and legal damages, including punitive damages and

24

civil contempt.

25
26
27

Q. Defendant understands and expressly acknowledges that it is “unlawful for any
person…to discharge or in any other manner discriminate against any
employee because such employee has filed any complaint or instituted or

28

CONSENT JUDGMENT & ORDER

Page 4 of 33

1

caused to be instituted any proceeding under [the FLSA], or has testified or is

2

about to testify in any such proceeding…” See 29 U.S.C. § 215(a)(3).

3

Defendant understands and expressly acknowledges that it is illegal to retaliate

4

in any manner against any employee, including the Drivers, because he or she

5

has participated in the instant proceedings by inter alia talking to the

6

Secretary’s representatives, providing deposition or trial testimony, or in any

7

way pursuing his or her rights under the FLSA. Defendant further understands

8

and expressly acknowledges that taking any retaliatory actions against any

9

employee in violation of the FLSA and the express terms of this Consent

10

Judgment may subject Defendant to equitable and legal damages, including

11

punitive damages and civil contempt.

12

Having considered the submissions made in connection with the proposed

13
14

settlement, the representations, arguments, recommendation of counsel for the parties,

15

and the requirements of law, the Court hereby makes the following findings of fact and

16

conclusions of law in support of its Final Order and Judgment approving the Consent

17

Judgment.

18

II.

19

FINDINGS OF FACT AND CONCLUSIONS OF LAW:
A. The Secretary has filed a Complaint alleging that Defendant violated

20

provisions of Sections 6, 11(c), 15(a)(2) and (5) of the Fair Labor Standards

21

Act of 1938, as amended (“FLSA” or the “Act”), 29 U.S.C. §§ 206, 211(c),

22

215(a)(2) and (5).

23

B. Defendant has received a copy of the Secretary’s Complaint.

24

C. Defendant has withdrawn any defenses to the Secretary’s Complaint directly

25
26
27

inconsistent with this consent decree.
D. This Court has jurisdiction over the parties and subject matter of this civil
action, and venue lies in the district court for the Central District of California.

28

CONSENT JUDGMENT & ORDER

Page 5 of 33

1
2
3

E. Defendant and the Secretary have agreed to the entry of this Consent Judgment
without contest.
F. Defendant and any individual or entity acting on its behalf or at its direction

4

(including but not limited to Edward DeNike, Defendant’s President, as well as

5

Kevin Baddeley, Defendant’s Carson Manager, and Defendant’s personnel at

6
7
8
9
10
11
12
13
14
15

its Oakland facility, including General Manager Guy Sanderson, Operations
Manager Maria Banales, Ja’Quita Carter, Lavita Jackson, Yard Manager Tony
Banales, and Dispatchers Kelvin Pham and Byron Trujillo) have notice of, and
understand, the provisions of this Consent Judgment.
G. Since at least August 20, 2009, Defendant has been a trucking and freight
transportation company that arranges for and transports containerized goods
arriving and departing on ocean vessels via ports, including the Port of
Oakland.
H. At times relevant, Defendant has employed drivers who leased trucks from

16

Defendant and who have been engaged in its transportation business,

17

transporting, shipping, and/or delivering goods to and from the Port of Oakland

18

(“Drivers”). Since at least August 20, 2009, the Drivers were and are engaged

19

in commerce or in the production of goods for commerce within the meaning

20

of the FLSA.

21

I. Since at least August 20, 2009, Defendant has been engaged in related

22

activities performed through unified operation or common control for a

23

common business purpose, and has been an enterprise within the meaning of

24

Section 3(r) of the FLSA, 29 U.S.C. § 203(r).

25
26
27

J. Since at least August 20, 2009, Defendant has been an enterprise engaged in
commerce or in the production of goods for commerce within the meaning of
Sections 3(s)(1)(A) of the FLSA, 29 U.S.C. § 203(s)(1)(A); in that it has

28

CONSENT JUDGMENT & ORDER

Page 6 of 33

1

employees who have been engaged in commerce or the production of goods

2

for commerce, or in handling, selling, or otherwise working on goods or

3

materials that have been moved in or produced for commerce by any person,

4

and is an enterprise whose annual gross volume of sales made or business done

5

is not less than $500,000.

6
7
8
9
10
11
12
13

K. At some times relevant, Defendant has misclassified the Drivers as
independent contractors rather than as employees (“Misclassified
Employees”).
L. Since at least August 20, 2009, the provisions and safeguards guaranteed under
the FLSA to employees, including but not limited to those found in Sections 6,
11(c), 15(a)(2) and 15(a)(5), apply to the Misclassified Employees.
M. Defendant has on at least some occasions violated Sections 6 and 15(a)(2) of

14

the FLSA by paying the Misclassified Employees wages at rates less than the

15

applicable federal minimum wage in workweeks when said employees were

16

engaged in commerce or in the production of goods for commerce or were

17

employed in an enterprise engaged in commerce or in the production of goods

18

for commerce, within the meaning of the FLSA.

19

N. Defendant has violated Sections 11(c) and 15(a)(5) of the FLSA by failing to

20

make, keep and preserve records of the Misclassified Employees and of the

21

wages, hours, and other conditions and practices of employment maintained by

22

them as prescribed by the regulations found in 29 C.F.R. Part 516 that are

23

issued, and from time to time amended, pursuant to Section 11(c) of the FLSA.

24

O. Demanding or accepting any of the monies due to any employees under the

25

terms of this Consent Judgment, threatening any employee for accepting

26
27

monies due under this Consent Judgment, or threatening any employee for
exercising any of his or her rights under the FLSA is specifically prohibited

28

CONSENT JUDGMENT & ORDER

Page 7 of 33

1

and may subject Defendant to equitable and legal damages, including punitive

2

damages and civil contempt. Said actions could also subject Defendant to

3

potential criminal prosecution.

4

P. Discharging, threatening to discharge, reducing a work schedule, or in any

5

other manner discriminating against any employee as a result of this litigation

6

or an employee’s participation herein, is specifically prohibited and may

7

subject Defendant to equitable and legal damages, including punitive damages

8
9
10
11
12
13

and civil contempt.
III.

JUDGMENT

Therefore, upon motion of the attorneys for the Secretary, and for cause shown,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that pursuant to
Section 17 of the FLSA, Defendant Shippers Transport Express, Inc., its officers, agents,

14

servants, employees , successor companies, and all persons in active concert or

15

participation, including but not limited to Guy Sanderson, Kevin Baddeley, and Edward

16

DeNike with them be, and they hereby are, permanently enjoined and restrained from

17

violating the provisions of the FLSA, in any of the following manners:

18

1. Defendant shall not, contrary to the FLSA, misclassify the Misclassified

19

Employees and any other present or future Drivers at its Oakland facility (or

20

any future facility should the current Oakland facility cease operations), as well

21

as all Drivers at Defendant’s other California facilities (including its facility

22

located in Carson, California, or any future facility should the current Carson

23

facility cease operations) as independent contractors or otherwise as non-

24

employees, but shall treat and classify said individuals as employees who shall

25

enjoy all protections and safeguards guaranteed under the FLSA, including but

26
27

not limited to those found in Sections 6, 11(c), 15(a)(2), 15(a)(3)and 15(a)(5)
of the Act.

28

CONSENT JUDGMENT & ORDER

Page 8 of 33

1

2. Defendant shall properly reclassify all Misclassified Employees and any other

2

present or future Drivers at its Oakland facility (or any future facility should

3

the current Oakland facility cease operations), as well as all Drivers at

4

Defendant’s other California facilities (including its facility located in Carson,

5

California, or any future facility should the current Carson facility cease

6
7
8
9
10
11
12
13

operations), as employees by no later than sixty (60) calendar days from the
date of entry of this Consent Judgment (“Reclassification Date”) (the period
from August 20, 2009 to the Reclassification Date is hereafter referred to as the
“Subject Period”).
3. Defendant shall not, contrary to Sections 6 and 15(a)(2) of the FLSA, pay any
of its employees who in any workweek are engaged in commerce or in the
production of goods for commerce or who are employed in an enterprise

14

engaged in commerce or in the production of goods for commerce, within the

15

meaning of the FLSA, wages at a rate less than $7.25 per hour (or at a rate less

16

than such other applicable minimum rate as may hereinafter be established by

17

amendment to the FLSA).

18

4. Defendant shall not, contrary to Sections 11(c) and 15(a)(5) of the FLSA fail to

19

make, keep and preserve records of their employees and of the wages, hours,

20

and other conditions and practices of employment maintained by them as

21

prescribed by the regulations issued, and from time to time amended, pursuant

22

to Section 11(c) of the FLSA and found in 29 C.F.R. Part 516.

23

5. Defendant shall make, keep, and preserve accurate records of the wages, hours,

24

and other work conditions and practices of each and every individual who

25

performs any work for Defendant at its Oakland facility (or any future facility

26

should the current Oakland facility cease operations).

27
28

CONSENT JUDGMENT & ORDER

Page 9 of 33

1

6. Defendant shall not, contrary to Section 15(a)(3) of the FLSA discharge,

2

threaten to discharge, lay off, refuse to provide work, reduce the work

3

schedule or wages, intimidate, provide negative employment references or

4

take any steps to interfere with an employee’s application to work for another

5

employer, or in any other manner discriminate against any employee as a

6
7
8
9
10
11
12
13
14
15

result of this litigation or because such employee has filed any complaint
under or related to the FLSA, has spoken to the Secretary’s representatives (or
provided a statement) in connection with this litigation, has provided
deposition testimony in this litigation, and/or has been named as a witness on
the Secretary’s witness list. Defendant shall not terminate, refuse to provide
work for, reduce the work, or lay off any employee as a result of this litigation
or employee actions to enforce rights protected by the FLSA. In accordance
with and in furtherance of the requirements of this paragraph, Defendant:
A) Shall post the daily dispatch log, each day, in a prominent location at its

16

Oakland facility, and shall identify the Driver to whom each dispatched load

17

or delivery was assigned;

18

B) Shall post the current Driver rate sheet, showing the rate for each

19

delivery or load, in a prominent location at its Oakland facility and shall

20

provide a copy to each of its current drivers;

21

C) Shall agree to provide neutral employment references for all Driver

22

employees upon request – and shall not take any steps to interfere with any

23

Drivers’ application to work for another company; and

24
25
26

D) Shall not offer to pay Drivers hourly or piece rates that are intentionally
low enough to discourage Drivers from continuing to work for Defendant or
constructively terminate them.

27
28

CONSENT JUDGMENT & ORDER

Page 10 of 33

1

7. IT IS FURTHER ORDERED that Defendant shall make payments to the

2

Wage Hour Division of the United States Department of Labor of $94,293.64,

3

which constitutes unpaid minimum wage compensation and pertinent

4

reimbursements for weeks during which minimum wage violations were found

5

due for the Subject Period to those current and former employees of Defendant

6
7
8
9
10
11
12
13

named in Exhibit A, attached hereto and made a part hereof (“Backwage
Calculation”), plus an additional equal amount of $94,293.64 as statutorily
authorized liquidated damages (“Liquidated Damages”), for a total of
$188,587.28.
8. Defendant shall not request, solicit, suggest, or coerce, directly, or indirectly,
any employee to return or to offer to return to Defendant or to someone else for
Defendant, any monies in the form of cash, check, or any other form, for

14

wages previously due or to become due in the future to said employee under

15

the provisions of this Consent Judgment or the FLSA; nor shall Defendant

16

accept, or receive from any employee, either directly or indirectly, any monies

17

in the form of cash, check, or any other form, for wages heretofore or hereafter

18

paid to said employee under the provisions of this Consent Judgment or the

19

FLSA; nor shall Defendant withhold work or wages, discharge, threaten to

20

discharge, or in any other manner discriminate, solicit or encourage anyone

21

else to discriminate, against any such employee because such employee has

22

received or retained monies due to him or her from Defendant under the

23

provisions of this Consent Judgment or the FLSA.

24
25
26

FURTHER, JUDGMENT IS HEREBY ENTERED, pursuant to Section 6
above in accordance with Section 16(c) of the FLSA, in favor of the Secretary and
against Defendant in the total amount of $188,587.28.

27
28

CONSENT JUDGMENT & ORDER

Page 11 of 33

1

9. Defendant shall pay to the Secretary the net amount of back wages due from

2

the total amount of the Backwage Calculation, which represents the unpaid

3

gross minimum wage compensation, and pertinent reimbursements for weeks

4

during which minimum wage violations were determined for the Subject

5

Period to the current and former employees of Defendant as set forth in

6
7
8
9
10
11
12
13

Exhibit A, attached hereto and made a part hereof. (See Section 7.)
10. Pursuant to authority expressly provided in Section 16 of the FLSA, 29 U.S.C.
§ 216, Defendant shall further pay to the Secretary the additional equal sum of
the Backwage Calculation as Liquidated Damages, hereby found to be due for
the Subject Period to the current and former employees named in Exhibit A,
attached hereto and made a part hereof. (See Section 7.)
11. The monetary provisions of this Consent Judgment shall be deemed satisfied

14

where Defendant complies with the following payment provisions:

15

a. Within sixty (60) calendar days of the entry of this Consent Judgment,

16

Defendant shall deliver to the Wage and Hour Division, United States

17

Department of Labor, Attn: Susana Blanco, 90 Seventh Street, Suite 12-100,

18

San Francisco, California, 94103, a schedule containing: (1) the employer’s

19

name, employer identification number, employer addresses and telephone

20

number, and (2) the names, last known home addresses, Social Security

21

numbers, home telephone numbers, mobile telephone numbers, gross

22

amount of back wages, amounts of legal deductions for Social Security and

23

withholding taxes thereon, and the resulting gross and net amount of back

24

wages for each Driver listed in the attached Exhibit A. Defendant shall be

25

responsible for determining the employer and employee portions of each

26
27

employee’s legal deductions for Social Security and withholding taxes
thereon from the amounts to be paid to the employees named in the attached

28

CONSENT JUDGMENT & ORDER

Page 12 of 33

1

Exhibit A, and for timely remitting said deductions to the appropriate

2

governmental agencies entitled thereto.

3

b. Within sixty (60) calendar days of entry of this Consent Judgment,

4

Defendant shall initiate repayment of the Backwage Calculation and

5

Liquidated Damages described supra by delivering three checks per

6
7

employee listed in Exhibit A to the DOL.
i.

8
9
10

said employee and shall have “Net BW Due” written thereon.
ii.

The second check will be in the amount of the total reimbursements
due to said employee and shall have “Reimbursements” written

11

thereon.

12
13

The first check will be in the amount of total net back wages due to

iii.

The third check will be for the full amount of liquidated damages due

14

to said employee as set forth in the attached Exhibit A and shall have

15

“Liquidated Damages” written thereon.

16

iv.

All checks shall include the firm name of “Shippers Transport

17

Express” and shall be made payable to the order of the employee and

18

“Wage & Hour Div., Labor.” For example, payment to John

19

Employee would be payable to “John Employee or Wage & Hour

20

Div., Labor.” Defendant shall deliver these payments to Wage and

21

Hour Division, United States Department of Labor, 90 Seventh

22

Street, Attn: Susana Blanco, Suite 12-100, San Francisco, California,

23

94103.

24

12. In the event of a default in the timely making of the payments specified in this

25

Consent Judgment, the full gross amount outstanding due under this Consent

26
27

Judgment, plus post-judgment interest at the rate of 10% per year from the date
of this Consent Judgment until the amount of this Consent Judgment is paid in

28

CONSENT JUDGMENT & ORDER

Page 13 of 33

1

full, shall become immediately due and payable directly to the U.S.

2

Department of Labor by certified check to the Wage and Hour Division (“Wage

3

and Hour”). For the purposes of this paragraph, a “default” is deemed to occur

4

if payment is not delivered within five (5) calendar days of the due date.

5
6
7
8
9
10
11
12
13

13. Upon receipt of the payments detailed supra, the Secretary shall distribute said
payments to the persons named in the attached Exhibit A, or to their estates if
that be necessary, in his sole discretion, and any monies not so paid within a
period of three (3) years from the date of its receipt, because of an inability to
locate the proper persons or because of their refusal to accept it, shall be then
deposited in the Treasury of the United States, as miscellaneous receipts,
pursuant to 29 U.S.C. § 216(c).
14. Within thirty (30) calendar days of the date of entry of this Consent Judgment,

14

Defendant shall provide each of their employees with a copy of the notice of

15

rights, attached as Exhibit B, which summarizes the terms of this Consent

16

Judgment and provides direct guidance from the U.S. Department of Labor

17

regarding employees’ rights, including protection from retaliation, under the

18

FLSA (“Notice of Rights”). Exhibit B includes English and Spanish versions

19

of the Notices of Rights. In the event Shippers is informed in writing by an

20

employee or the DOL that the native language of any employee of Defendant is

21

a language other than English and Spanish, Defendant shall ensure that the

22

Notice of Rights is properly translated into that language within a week.

23

Within the time period prescribed above, Defendant shall take the following

24

steps to help ensure that all of Defendant’s employees are aware of their rights

25

under the FLSA:

26
27

a. Defendant shall post a copy of Exhibit B in a prominent location at its
current Oakland facility (for example, near the facility’s front door, near the

28

CONSENT JUDGMENT & ORDER

Page 14 of 33

1

dispatch window), and Defendant shall do the same at any future facility

2

should the current Oakland facility cease operations, within ten (10)

3

calendar days of it beginning operations;

4
5
6
7
8
9
10
11
12
13

b. Defendant shall provide a copy of Exhibit B to all of Defendant’s
employees;
c. Defendant shall provide a copy of Exhibit B to all newly hired employees
before or by the date said employee begins performing work for Defendant
at its Oakland facility (or any future facility should the current Oakland
facility cease operations).
15. Within ten (10) calendar days of the date that Defendant signs this Consent
Judgment, Defendant shall post U.S. Department of Labor-approved posters
regarding the minimum wage provision of the FLSA, in a prominent location

14

at its Oakland facility (for example, near the facility’s front door, near the

15

dispatch window), and Defendant shall do the same at any future facility

16

should the current Oakland facility cease operations within ten (10) calendar

17

days of it beginning operations. Copies of said posters are available for

18

download and printing at:

19

http://www.dol.gov/whd/regs/compliance/posters/flsa.htm.

20

16. Within six (6) months of the date that Defendant signs this Consent Judgment,

21

or as soon as thereafter practicable given Wage and Hour representatives’

22

availability, Defendant shall permit representatives from Wage and Hour to

23

conduct a training session for all employees at Defendant’s Oakland facility (or

24

any future facility should the current Oakland facility cease operations).

25

Defendant’s employees, including Guy Sanderson, Maria Banales, Ja’Quita

26
27

Carter, Kelvin Pham, Tony Banales, Lavita Jackson, Sonia Pena, and Byron
Trujillo shall also be present at said training, which shall be compensable time

28

CONSENT JUDGMENT & ORDER

Page 15 of 33

1

for which employees shall receive pay. Topics to be covered by Wage and

2

Hour during said training shall include, but are not limited to: minimum wage

3

and recordkeeping provisions of the FLSA; specific considerations relating to

4

misclassification in the port truck driving industry; and anti-retaliation

5

provisions of the FLSA. Upon a determination by Wage and Hour

6
7
8
9
10
11
12
13

representatives, said training may be followed by a confidential question and
answer session between Wage and Hour representatives and Defendant’s
employees, during which time Defendant’s non-driver employees are not
present (“Q&A Session”). The Q&A Session shall also be compensable time
for which employees shall receive pay.
17. Within ten (10) calendar days of the date that Defendant signs this Consent
Judgment, Defendant shall implement a recordkeeping, retention, and

14

inspection program as detailed below:

15

a. All employees of Defendant at its Oakland facility (or any future facility

16

should the current Oakland facility cease operations) shall record their work

17

time in an accurate and timely manner, whether such recording be made

18

through the use of a time clock, handwritten time records, or by other

19

means (“Time Records”). Work time shall include, but is not necessarily

20

limited to, time spent by individuals: hauling loads on behalf of Defendant,

21

waiting in line at the Port of Oakland, waiting for dispatches, and

22

conducting pre-trip and post-trip truck inspections.

23

b. For each work week, Defendant shall sum each employee’s Time Records

24

to identify the time worked each day and each workweek per individual.

25

Each pay period, Defendant shall prepare a statement of hours worked by

26
27

each individual for each day, week and pay period (“Work Hours
Summary”). Defendant shall have each individual review his or her Work

28

CONSENT JUDGMENT & ORDER

Page 16 of 33

1

Hours Summary, write in corrections if necessary, and sign the Work Hours

2

Summary. Each Work Hours Summary shall contain a statement in English

3

and Spanish indicating that:

4

“Your Employer must pay you for all hours worked, which

5

includes all time that you are required to be on the

6
7
8
9
10
11
12
13
14
15

Employer’s premises and are not free from duties. If you
think your Employer has not paid you for all hours you
worked, you can call the U.S. Department of Labor to
make a confidential complaint at 1-866-4US-WAGE.”
Immediately upon issuance and for two (2) years thereafter, Defendant shall
maintain copies of all Work Hours Summary for inspection by the U.S.
Department of Labor at any time and by any of Defendant’s employees at
any time.
18. Within six (6) months of the date that Defendant signs this Consent Judgment,

16

Defendant shall obtain an audit of its compliance with the FLSA, and

17

regulations issued under the FLSA, to be conducted by a third-party monitor

18

who shall be a former Federal Judge with JAMS hired at Defendant’s expense,

19

the total cost of which shall not exceed $7,500. The third-party monitor Judge

20

will prepare a written report which summarizes the steps taken to complete the

21

audit, and the findings of the audit as to Defendant’s compliance with the

22

FLSA. In the event that the third-party monitor finds non-compliance with the

23

FLSA, Defendant shall provide a copy of the written report to the Wage and

24

Hour Division, United States Department of Labor, Attn: Susana Blanco, 90

25

Seventh Street, Suite 12-100, San Francisco, California, 94103.

26
27

a. The third-party monitor shall have the ability to communicate with
Defendant’s employees in their native language(s), or, shall be provided

28

CONSENT JUDGMENT & ORDER

Page 17 of 33

1
2

with an interpreter as necessary at Defendant’s expense.
b. Defendant shall cooperate in full with the third-party monitor, including

3

providing the monitor access to the Shippers’ facilities and yard, employees,

4

and to payroll and time records. Defendant shall also provide to the

5

monitor the daily dispatch logs that show which Driver was assigned to

6
7
8
9
10
11
12
13

each load or delivery – so that the monitor may ascertain whether or not
Defendant has refused to provide work or diminishes work for any Drivers,
and why.
c. If the third-party monitor finds violations of the FLSA, or regulations
issued under the FLSA, that result in back wages due, Defendant shall pay
the wages due within thirty (30) calendar days.
d. If the third-party monitor directs changes in Defendant’s policies and/or

14

procedures, or directs that Defendant take action to comply with the FLSA

15

or regulations issued under the FLSA, Defendant shall do so. The monitor

16

may investigate and report incidents or allegations or complaints of

17

retaliation to the employer. If not resolved in a satisfactory manner, the

18

monitor will report it to the U.S. Department of Labor.

19

e. The third-party monitor shall have the duty to conduct off-site interviews

20

with Defendant’s employees; such interviews, and other communications

21

between employees and the third-party monitor may be kept confidential --

22

except as to authorized representatives of the U.S. Department of Labor --

23

at the option of each employee; and copies of all notes and interviews

24

conducted by the monitor may be turned over to Wage and Hour, along with

25

the audit report, if requested by Wage and Hour.

26
27

f. Discrimination or retaliation by Defendant against any employee for
cooperating or communicating with the third-party monitor is prohibited to

28

CONSENT JUDGMENT & ORDER

Page 18 of 33

1
2

the fullest extent of the law, as provided in 29 U.S.C. § 215(a)(3).
19. The filing, pursuit, and/or resolution of this proceeding with the filing of this

3

Consent Judgment shall not act as, or be asserted as, a bar to any action under

4

Section 16(b) of the FLSA, 29 U.S.C. § 216(b), as to any employee not named

5

on the attached Exhibit A, nor as to any employee named on the attached

6
7
8
9
10
11
12
13
14

Exhibit A for any period not specified herein for the back wage recovery
provisions.
20. Each party shall bear all fees and other expenses (including court costs and
attorney’s fees) incurred by such party in connection with any stage of this
proceeding.
21. IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this
action for purposes of enforcing compliance with the terms of this Consent
Judgment for five years.

15
16
17
18
19

IT IS SO ORDERED.
Dated: November 17, 2014

____________________________________
HONORABLE BEVERLY REID O’CONNELL
UNITED STATES DISTRICT COURT JUDGE

20
21
22
23
24
25
26
27
28

CONSENT JUDGMENT & ORDER

Page 19 of 33

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

CONSENT JUDGMENT & ORDER

Page 20 of 33

1

Exhibit A

2
3

Updated Driver List From August 20, 2009 to Present

4
5

1.

Mark Abney

6

Section 6 Minimum Wage Violations:

$76.30

7

Section 6 Liquidated Damages:

$76.30

Reimbursements:

$247.92

10

Reimbursement Liquidated Damages:

$247.92

11

Total Owed:

$648.44

8
9

12

2.

13

Gerardo Azurdia
Section 6 Minimum Wage Violation:

$258.66

15

Section 6 Liquidated Damages:

$258.66

16

Reimbursements:

$1,526.93

17

Reimbursement Liquidated Damages:

$1,526.93

Total Owed:

$3,571.18

14

18
19
20

3.

Ralph Bates

21

Section 6 Minimum Wage Violation:

$392.92

22

Section 6 Liquidated Damages:

$392.92

Reimbursements:

$5,291.52

Reimbursement Liquidated Damages:

$5,291.52

Total Owed:

$11,368.88

23
24
25
26
27

4.

Sam Bowie

28

CONSENT JUDGMENT & ORDER

Page 21 of 33

1

Section 6 Minimum Wage Violation:

$260.48

2

Section 6 Liquidated Damages:

$260.48

3

Reimbursements:

$1,837.23

Reimbursement Liquidated Damages:

$1,837.23

Total Owed:

$4,195.42

4
5
6
7

5.

8

Tammany Brooks
Section 6 Minimum Wage Violation:

$6.54

Section 6 Liquidated Damages:

$6.54

Reimbursements:

$614.56

12

Reimbursement Liquidated Damages:

$614.56

13

Total Owed:

$1,242.20

9
10
11

14

6.

William Cantrell

15
Section 6 Minimum Wage Violation:

$469.72

17

Section 6 Liquidated Damages:

$469.72

18

Reimbursements:

$3,933.79

19

Reimbursement Liquidated Damages:

$3,933.79

Total Owed:

$8,807.02

16

20
21
22

7.

Omar Carrillo

23

Section 6 Minimum Wage Violation:

$205.26

24

Section 6 Liquidated Damages:

$205.26

Reimbursements:

$2,643.97

27

Reimbursement Liquidated Damages:

$2,643.97

28

Total Owed:

$5,698.46

25
26

CONSENT JUDGMENT & ORDER

Page 22 of 33

1

8.

Israel Chavez

2

Section 6 Minimum Wage Violation:

$297.57

3

Section 6 Liquidated Damages:

$297.57

Reimbursements:

$1,342.63

6

Reimbursement Liquidated Damages:

$1,342.63

7

Total Owed:

$3,280.40

4
5

8

9.

9

Franklin Coello
Section 6 Minimum Wage Violation:

$25.20

Section 6 Liquidated Damages:

$25.20

12

Reimbursements:

$1,342.63

13

Reimbursement Liquidated Damages:

$1,342.63

Total Owed:

$2,735.66

10
11

14
15
16

10.

Anthony Contares

17

Section 6 Minimum Wage Violation:

$427.73

18

Section 6 Liquidated Damages:

$427.73

19

Reimbursements:

$4,403.91

Reimbursement Liquidated Damages:

$4,403.91

Total Owed:

$9,663.28

20
21
22
23
24

11.

Leon Davis
Section 6 Minimum Wage Violation:

$156.98

Section 6 Liquidated Damages:

$156.98

27

Reimbursements:

$2,364.55

28

Reimbursement Liquidated Damages:

$2,364.55

25
26

CONSENT JUDGMENT & ORDER

Page 23 of 33

Total Owed:

1
2

12.

3

$5,043.06

Siu Eng
Section 6 Minimum Wage Violation:

$64.77

Section 6 Liquidated Damages:

$64.77

6

Reimbursements:

$444.42

7

Reimbursement Liquidated Damages:

$444.42

8

Total Owed:

$1,018.38

4
5

9

13.

Jose Garcia

10
Section 6 Minimum Wage Violation:

$788.38

12

Section 6 Liquidated Damages:

$788.38

13

Reimbursements:

$2,063.13

Reimbursement Liquidated Damages:

$2,063.13

Total Owed:

$5,703.02

11

14
15
16
17

14.

Xavier Gillete

18

Section 6 Minimum Wage Violation:

$1,718.83

19

Section 6 Liquidated Damages:

$1,718.83

Reimbursements:

$8,778.75

22

Reimbursement Liquidated Damages:

$8,778.75

23

Total Owed:

$20,995.16

20
21

24
25

15.

Lemuel Hardaway
Section 6 Minimum Wage Violation:

$14.82

27

Section 6 Liquidated Damages:

$14.82

28

Reimbursements:

$661.58

26

CONSENT JUDGMENT & ORDER

Page 24 of 33

1

Reimbursement Liquidated Damages:

$661.58

2

Total Owed:

$1,352.80

3

16.

4

Thon Kloak
Section 6 Minimum Wage Violation:

$155.72

6

Section 6 Liquidated Damages:

$155.72

7

Reimbursements:

$1,784.04

8

Reimbursement Liquidated Damages:

$1,784.04

Total Owed:

$3,879.52

5

9
10
11

17.

Nhan Trung Le

12

Section 6 Minimum Wage Violation:

$153.42

13

Section 6 Liquidated Damages:

$153.42

Reimbursements:

$1,082.30

Reimbursement Liquidated Damages:

$1,082.30

Total Owed:

$2,471.44

14
15
16
17
18

18.

19

Peter Lee
Section 6 Minimum Wage Violation:

$421.73

Section 6 Liquidated Damages:

$421.73

22

Reimbursements:

$338.35

23

Reimbursement Liquidated Damages:

$338.35

24

Total Owed:

$1,520.16

20
21

25
26

19.

Oscar Marmol

27

Section 6 Minimum Wage Violation:

$1,088.27

28

Section 6 Liquidated Damages:

$1,088.27

CONSENT JUDGMENT & ORDER

Page 25 of 33

1

Reimbursements:

$5,124.63

2

Reimbursement Liquidated Damages:

$5,124.63

3

Total Owed:

$12,425.80

4
5

20.

Hernando Martinez

6

Section 6 Minimum Wage Violation:

$198.56

7

Section 6 Liquidated Damages:

$198.56

8

Reimbursements:

$1,929.91

Reimbursement Liquidated Damages:

$1,929.91

Total Owed:

$4,256.94

9
10
11
12

21.

13

Marcelino Matias
Section 6 Minimum Wage Violation:

$52.20

Section 6 Liquidated Damages:

$52.20

Reimbursements:

$1,321.32

17

Reimbursement Liquidated Damages:

$1,321.32

18

Total Owed:

$2,747.04

14
15
16

19

22.

20

Urbain Mekoyo
Section 6 Minimum Wage Violation:

$174.26

22

Section 6 Liquidated Damages:

$174.26

23

Reimbursements:

$2,449.10

24

Reimbursement Liquidated Damages:

$2,449.10

Total Owed:

$5,246.72

21

25
26
27
28

23.

Jamie B. Nunez
Section 6 Minimum Wage Violation:

CONSENT JUDGMENT & ORDER

$188.12

Page 26 of 33

1

Section 6 Liquidated Damages:

$188.12

2

Reimbursements:

$1,447.80

3

Reimbursement Liquidated Damages:

$1,447.80

Total Owed:

$3,271.84

4
5
6

24.

Herbert Olivares

7

Section 6 Minimum Wage Violation:

$77.94

8

Section 6 Liquidated Damages:

$77.94

Reimbursements:

$1,321.85

Reimbursement Liquidated Damages:

$1,321.85

Total Owed:

$2,799.58

9
10
11
12
13

25.

14

Sebastian Padilla
Section 6 Minimum Wage Violation:

$58.52

Section 6 Liquidated Damages:

$58.52

17

Reimbursements:

$1,119.58

18

Reimbursement Liquidated Damages:

$1,119.58

19

Total Owed:

$2,356.20

15
16

20
21

26.

Alan Pelley

22

Section 6 Minimum Wage Violation:

$121.95

23

Section 6 Liquidated Damages:

$121.95

24

Reimbursements:

$1,762.62

Reimbursement Liquidated Damages:

$1,762.62

Total Owed:

$3,769.14

25
26
27
28

CONSENT JUDGMENT & ORDER

Page 27 of 33

1

27.

Armando Perez

2

Section 6 Minimum Wage Violation:

$294.25

3

Section 6 Liquidated Damages:

$294.25

Reimbursements:

$5,113.87

6

Reimbursement Liquidated Damages:

$5,113.87

7

Total Owed:

$10,816.24

4
5

8

28.

9

Justin Phan
Section 6 Minimum Wage Violation:

$617.47

Section 6 Liquidated Damages:

$617.47

12

Reimbursements:

$2,590.39

13

Reimbursement Liquidated Damages:

$2,590.39

Total Owed:

$6,415.72

10
11

14
15
16

29.

Zharman Prior

17

Section 6 Minimum Wage Violation:

$190.02

18

Section 6 Liquidated Damages:

$190.02

19

Reimbursements:

$902.67

Reimbursement Liquidated Damages:

$902.67

Total Owed:

$2,185.38

20
21
22
23
24

30.

John M. Puerta
Section 6 Minimum Wage Violation:

$246.87

Section 6 Liquidated Damages:

$246.87

27

Reimbursements:

$1,197.80

28

Reimbursement Liquidated Damages:

$1,197.80

25
26

CONSENT JUDGMENT & ORDER

Page 28 of 33

Total Owed:

1
2

31.

3

$2,889.34

Jose Rodriguez
Section 6 Minimum Wage Violation:

$43.05

Section 6 Liquidated Damages:

$43.05

6

Reimbursements:

$1,325.78

7

Reimbursement Liquidated Damages:

$1,325.78

8

Total Owed:

$2,737.66

4
5

9

32.

Orlando Sanchez

10
Section 6 Minimum Wage Violation:

$419.59

12

Section 6 Liquidated Damages:

$419.59

13

Reimbursements:

$5,729.42

Reimbursement Liquidated Damages:

$5,729.42

Total Owed:

$12,298.02

11

14
15
16
17

33.

Dwayne Smith

18

Section 6 Minimum Wage Violation:

$140.71

19

Section 6 Liquidated Damages:

$140.71

Reimbursements:

$3,755.86

22

Reimbursement Liquidated Damages:

$3,755.86

23

Total Owed:

$7,793.14

20
21

24
25

34.

Carlos Suarez
Section 6 Minimum Wage Violation:

$141.24

27

Section 6 Liquidated Damages:

$141.24

28

Reimbursements:

$650.94

26

CONSENT JUDGMENT & ORDER

Page 29 of 33

1

Reimbursement Liquidated Damages:

$650.94

2

Total Owed:

$1,584.36

3

35.

4

Thomas J. Templin
Section 6 Minimum Wage Violation:

$183.88

6

Section 6 Liquidated Damages:

$183.88

7

Reimbursements:

$1,568.44

8

Reimbursement Liquidated Damages:

$1,568.44

Total Owed:

$3,504.64

5

9
10
11

36.

Carletta Todd-Reed

12

Section 6 Minimum Wage Violation:

$162.17

13

Section 6 Liquidated Damages:

$162.17

Reimbursements:

$1,698.85

Reimbursement Liquidated Damages:

$1,698.85

Total Owed:

$3,722.04

14
15
16
17
18

37.

19

Johnny Tran
Section 6 Minimum Wage Violation:

$269.36

Section 6 Liquidated Damages:

$269.36

22

Reimbursements:

$690.81

23

Reimbursement Liquidated Damages:

$690.81

24

Total Owed:

$1,920.34

20
21

25
26

38.

Amanaki Veamatahau

27

Section 6 Minimum Wage Violation:

$24.03

28

Section 6 Liquidated Damages:

$24.03

CONSENT JUDGMENT & ORDER

Page 30 of 33

1

Reimbursements:

$1,302.30

2

Reimbursement Liquidated Damages:

$1,302.30

3

Total Owed:

$2,652.66

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

CONSENT JUDGMENT & ORDER

Page 31 of 33

1

Exhibit B

2

LEGAL NOTICE TO ALL EMPLOYEES

3

The United States Department of Labor conducted an investigation of Shippers

4

Transport Express (“Shippers”) and has determined that drivers who haul loads on behalf

5

of Shippers (“you”), were misclassified as “independent contractors,” and should instead

6
7
8
9
10
11
12
13

have been treated as “employees” because your work is controlled by Shippers and you
are not independent business people. Some employers improperly classify employees as
independent contractors so that the employers can avoid giving benefits to employees
and can avoid paying payroll taxes.
In a settlement with the United States Department of Labor, Defendant has
voluntarily agreed to properly classify all drivers who haul or have hauled loads from
Shippers from August 20, 2009 through the present as employees, rather than as

14

independent contractors, to pay the back wages and liquidated damages owed to you,

15

and to take other steps to ensure that all employees are paid properly under the Fair

16

Labor Standards Act (“FLSA”).

17

Among other things, the FLSA provides that all employees must be paid

18

minimum wage for all hours worked. The FLSA also provides that all employees are

19

protected from retaliation or discrimination. This means that no one from Shippers,

20

including Guy Sanderson, Tony Banales, Kelvin Pham, Maria Banales, or Ja’Quita

21

Carter can terminate you, threaten to terminate you, reduce your work or your pay, or in

22

any way retaliate or discriminate against you because you have spoken to anyone at the

23

Department of Labor, testified in this case, or in any way tried to enforce your rights

24

under the FLSA.

25
26
27

The United States Department of Labor wants to remind you that you may
contact the Department if you have any question about your employment situation,
such as your classification as an employee (versus independent contractor) and

28

CONSENT JUDGMENT & ORDER

Page 32 of 33

1
2

your rights to lawful wages and to be free from retaliation.
If you think you are not being paid in accordance with the law, you can call

3

the United States Department of Labor, Wage and Hour Division, at [phone]

4

or 1-866-4-USWAGE (1-866-487-9243), and your name will be kept confidential.

5
6
7
8

The Department wants to remind you that you also have employment rights under
California state law and you may contact the California Division of Labor Standards
Enforcement, at [phone], for any questions you may have about those rights.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

CONSENT JUDGMENT & ORDER

Page 33 of 33