Costello et al v. Beavex, Inc.

Filing 95

Enter MEMORANDUM,OPINION AND ORDER: For the foregoing reasons, BeavExs motion for summary judgment and the Plaintiffs motion for class certification are denied, and the Plaintiffs motion for partial summary judgment is granted as to the named plaintiffs. Signed by the Honorable Virginia M. Kendall on 3/31/2014.Mailed notice(tsa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THOMAS COSTELLO, MEGAN BAASE
KEPHART, AND OSAMA DAOUD, ET AL.,
INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs,
v.
BEAVEX INC.,
Defendant.

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No. 12 C 7843
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Plaintiffs Thomas Costello, Megan Baase Kephart, Osama Daoud, and the class they seek
to represent, worked for Defendant BeavEx, Inc., a courier company, as delivery drivers. The
Plaintiffs brought the instant three-count Complaint on January 11, 2013 alleging that BeavEx
unlawfully classified its delivery drivers as “independent contractors” when they should have
been deemed “employees” under both Illinois statutory and common law. (Dkt. No. 34). This
misclassification allegedly resulted in (1) deprivation of overtime wages in violation of the
Illinois Minimum Wage Law (“IMWL”); (2) illegal deductions taken from the Plaintiffs’ wages
in violation of the Illinois Wage Payment and Collection Act (“IWPCA”); and (3) unjust
enrichment of BeavEx. Specifically in Count II, the Plaintiffs allege that BeavEx unlawfully took
deductions from their pay in order to fund uniforms, cargo insurance, workers’ accident
insurance, administrative fees, scanner fees, and cellular phone fees in violation of the IWPCA
that would not have occurred were the Plaintiffs properly classified as “employees.” See 820
ILCS 115/9. BeavEx moves for

summary judgment claiming

that the Federal Aviation

Administration Authorization Act of 1994 (“FAA”) preempts the IWPCA because the FAA
expressly preempts a State from enacting or enforcing a law related to a price, route, or service
of any motor carrier. See 49 U.S.C. § 14501(c)(1). The Plaintiffs filed for summary judgment on
Count II claiming that BeavEx cannot satisfy the IWPCA independent contractor exception to
wage deductions based on the undisputed facts while concurrently moving the Court to certify
this case as a class action pursuant to Fed. R. Civ. Pro. 23. For the reasons set forth below,
BeavEx’s motion for summary judgment and the Plaintiffs’ motion for class certification are
denied, and the Plaintiffs’ motion for summary judgment on Count II is granted as to the named
plaintiffs.
STATEMENT OF MATERIAL UNDISPUTED FACTS 1
Each of the parties to the present dispute has moved for summary judgment in their
respective favor. Therefore, the Plaintiffs submitted a statement of undisputed material facts in
support of their partial motion for summary judgment as well as a response to BeavEx’s
statement of undisputed material facts. Further, a majority of the undisputed material facts
submitted by BeavEx are supported solely by the Declaration of Sandra Foster, the Senior Vice
President for BeavEx. There are numerous statements throughout Foster’s declaration that
constitute statements of opinion and arguments, not statements of fact, contrary to Local Rule
56(a)(3). See Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382
(7th Cir. 2008). (“It is inappropriate to make legal arguments in a Rule 56.1 statement of facts.”)
(internal citations omitted); Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) (a party’s
statement of material facts submitted pursuant to Local Rule 56.1 is improper where it fails to
1

Throughout this Opinion, the Court refers to the Parties’ Local Rule 56.1 Statements of Undisputed Material Facts
as follows: citations to BeavEx’s Statement of Material Facts (Dkt. 63) have been abbreviated to “Def. 56.1 St. ¶
__”; citations to the Plaintiffs’ Response to Defendant’s Statement of Material Facts (Dkt. 68) have been abbreviated
to “Pl. Resp. 56.1 St. ¶ __”; and citations to the Plaintiffs’ Statement of Material Facts (Dkt. 77) have been
abbreviated to “ Pl. 56.1 St. ¶ __.”

2

cite to the record and is “filled with irrelevant information, legal arguments, and conjecture”).
The purpose of Local Rule 56.1 statements of facts is to identify the relevant admissible evidence
supporting the material facts that each party contends require either the granting or the denial of
summary judgment. See Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999) (the local rules
governing summary judgment “assist the court by organizing the evidence, identifying
undisputed facts, and demonstrating precisely how each side proposes to prove a disputed fact
with admissible evidence.”). It is improper for a litigant to include legal or factual conclusions,
arguments, or conjecture in a statement of material facts and accordingly, statements constituting
such will be ignored by the Court. 2
Background
BeavEx is one of the largest courier companies in the nation and its primary function is to
perform same-day delivery service for clients across the country including in Illinois. (Pl. 56.1
St. ¶ 1, Ex. A; Def. 56.1 St. ¶ 1). BeavEx provides these delivery services for compensation
through drivers classified as independent contractors by BeavEx, who drive their own vehicles.
(Def. 56.1 St. ¶ 3, Pl. 56.1 St. ¶ 6). Plaintiffs and the class they seek to represent comprise a
group of approximately 825 courier drivers who performed delivery services for BeavEx in
Illinois from October 1, 2002 to the present. (Pl. 56.1 St. ¶ 3). BeavEx offers its clients both
scheduled-route and on-demand delivery services. (Def. 56.1 St. ¶ 4). With regard to scheduledroute services, BeavEx clients dictate regular times and locations that pick-ups and drop-offs
must be made, which are communicated to drivers through a manifest listing that day’s delivery
route information, including customer names, locations, order of deliveries, and a specified time
for each delivery. (Id. at ¶ 5; Pl. 56.1 St. ¶ 11). At this time, BeavEx has approximately 280
2

While self-serving statements can be used to create disputes of fact, that is not what BeavEx attempts here. In this
case, BeavEx utilizes self-serving statements as legal conclusions, arguing that summary judgment is proper. The
Court is not convinced without more.

3

scheduled routes in Illinois that it coordinates on a regular basis. (Def. 56.1 St. ¶ 7). With regard
to on-demand delivery services, BeavEx often receives calls from clients for rush deliveries
which tend to be variable and unpredictable. (Id. at ¶ 9-10).
BeavEx currently employs nine full-time employees and one part-time employee in
Illinois to handle administrative and warehouse duties. (Id. at ¶ 16). The employees are paid on
an hourly or salary basis and receive health insurance and other benefits. (Def. 56.1 St. ¶ 17).
BeavEx also provides workers’ compensation insurance, pays payroll taxes, and makes
unemployment insurance contributions for its employees. (Id. at ¶ 18). BeavEx classifies its
drivers as independent contractors as opposed to employees. (Pl. 56.1 St. ¶ 6). The drivers are
paid by route for each delivery completed, instead of by hours or weeks worked, and do not
receive benefits such as health insurance or workers’ compensation. (Def. 56.1 St. ¶ 19-20). Nor
does BeavEx pay drivers’ payroll or unemployment insurance taxes. (Id. at ¶ 21). BeavEx uses
drivers who are incorporated and others who are not, and some who utilize subcontractors to
complete scheduled routes which are bid on and accepted by the driver. (Id. at ¶ 39). BeavEx
does not prohibit or discourage its drivers from utilizing subcontractors, but drivers cannot
engage a subcontractor or replacement driver without approval from BeavEx. (Def. 56.1 St. ¶ 40;
Pl. 56.1 St. ¶ 31, Ex. E, F, and G).
Drivers’ Operations
BeavEx drivers generally begin their shift by reporting to one of BeavEx’s office
locations. (Pl. 56.1 St. ¶ 8). Drivers use their own vehicles to provide the delivery service. (Def.
56.1 St. ¶ 29). Drivers are required to wear apparel with the BeavEx logo when performing
deliveries and their cars are required to have the BeavEx name, logo, phone number, and Illinois
Commerce Commission number on both sides. (Pl. 56.1 St. ¶14-15, Ex. D, E, F, and G). BeavEx

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drivers operate their assigned routes under BeavEx’s Illinois motor carrier number, and in order
to utilize this number, drivers are required to lease their personal vehicles to BeavEx. (Id. at ¶ 3233). Further, drivers are required to use scanners and record logs to make a record upon delivery
of a package. (Id. at ¶ 16). BeavEx manages all communications with customers, however. (Id. at
¶ 20). BeavEx also has authority to discipline or terminate drivers who violate its policies
through either an accumulation of minor breaches or one major breach. (Id. at ¶ 38-41).
Owner/Operator Agreement and Contract Management Services Contract
As a precondition of employment, all BeavEx drivers are required to sign both an
Owner/Operator Agreement, which classifies drivers as independent contractors, and a contract
with Contract Management Services (“CMS”). (Id. at ¶ 7 and 46). Under the owner/operator
agreements, a driver can be terminated any time for any improper conduct. (Id. at ¶ 42). Further,
if a customer stops contracting with BeavEx, BeavEx may terminate the driver’s contract
assigned to that customer’s route. (Id. at ¶ 44, Ex. E, F, and G). Under the CMS agreements,
BeavEx takes various deductions from drivers’ pay, including deductions for occupational
accident insurance, cargo insurance, uniforms, scanners, and “chargebacks.” (Id. at ¶ 45, Ex. P,
Q, and R). The drivers purchase both the occupational accident insurance and cargo insurance
through BeavEx and CMS. (Id. at ¶ 48-49). BeavEx also takes deductions from drivers’ pay for
scanners, uniforms, phone chargers, CMS processing fees, and “chargebacks” if BeavEx
determines a driver failed to satisfactorily complete a delivery. (Id. at ¶ 50-53).
The IWPCA and the FAAAA
The Plaintiffs bring their claim under Count II relying on the language of the IWPCA.
The IWPCA provides that:
deductions by employers from wages or final compensation are prohibited unless
such deductions are (1) required by law; (2) to the benefit of the employee; (3) in
5

response to a valid wage assignment or wage deduction order; (4) made with the
express written consent of the employee, given freely at the time the deduction is
made; (5) made by a municipality with a population of 500,000 or more…or (6)
made by a housing authority in a municipality with a population of 500,000 or
more…
820 ILCS 115/9. The IWPCA applies to all employers and employees in Illinois. See 820 ILCS
115/1. The term “employee” does not include any individual:
(1) who has been and will continue to be free from control and direction over the
performance of his work, both under his contract of service with his employer and
in fact; and (2) who performs work which is either outside the usual course of
business or is performed outside all of the places of business of the employer
unless the employer is in the business of contracting with third parties for the
placement of employees; and (3) who is in an independently established trade,
occupation, profession or business.
820 ILCS 115/2. This is commonly referred to as the independent contractor exception. The
Defendants, on the other hand, base their motion for summary judgment on the preemption
clause found in the FAAAA. Congress enacted the FAAAA in 1994 to address deregulation of
the trucking industry. The FAAAA provides, in part:
[A] State, political subdivision of a State, or political authority of 2 or more States
may not enact or enforce a law, regulation, or other provision having the force and
effect of law related to a price, route, or service of any motor carrier…with
respect to the transportation of property.
49 U.S.C. § 14501(c)(1).
STANDARD OF REVIEW
“Summary judgment is proper when, viewing all facts and inferences in favor of the
nonmoving party, no genuine dispute as to material fact exists, and the moving party is entitled
to judgment as a matter of law.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). Whether a
fact is material depends on the underlying substantive law that governs the dispute. Id. And a
genuine dispute is one where “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. (citation omitted). Summary judgment is appropriate where the
6

moving party shows that the nonmoving party cannot prove an element essential to its case.
Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012). Where the moving party
has properly supported its motion, the nonmoving party must come forward with facts that show
there is a genuine issue for trial. Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 951 (7th Cir.
2013).
DISCUSSION
I. BeavEx’s Motion for Summary Judgment
A. Preemption
BeavEx’s motion for summary judgment claims there is preemption of the IWPCA based
on FAAAA section 14501. If this federal statute preempts the Plaintiffs’ unlawful deduction
claim, then Count II of the Complaint must fail and summary judgment is proper.
The constitutional basis for federal preemption is the Supremacy clause, which states,
“[The Laws of the United States…shall be the supreme Law of the Land[.]” U.S. Const. Art. VI,
Cl. 2. When considering preemption, a court must “start with the assumption that the historic
police powers of the States were not to be superseded by the Federal Act unless that was the
clear and manifest purpose of Congress. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
Accordingly, the “purpose of Congress” is the ultimate touchstone of preemption analysis.
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992).
To understand Congress’ purpose, the first consideration is the text of the federal law, in
this case, § 14501(c). In relevant part, it states:
(1) General rule.—Except as provided in paragraphs (2) and (3), as State…may
not enact or enforce a law, regulation, or other provision having the force and
effect of law related to a price, route, or service of any motor carrier…with
respect to the transportation of property.

7

49 U.S.C. § 14501(c) (emphasis added). Section 14501 had its genesis in the Airline
Deregulation Act of 1978 (ADA), 92 Stat. 1705, which “largely deregulated the domestic airline
industry.” See Dan’s City Used Cars, Inc. v. Pelkey, 133 S.Ct. 1769, 1775 (2013). The ADA
aimed to “ensure that states would not undo federal deregulation with regulation of their own.”
Id. (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992)). To safeguard this,
the ADA included a preemption provision which prohibited states from enacting or enforcing
any law “related to a price, route, or service of an air carrier.” 49 U.S.C. § 41713(b)(1). Two
years later, Congress deregulated the trucking industry using largely the same language as the
ADA. See Motor Carrier Act of 1980, Pub. L. No. 96-296, 94 Stat. 793.
Congress additionally limited the states’ ability to regulate trucking by enacting the
FAAAA of 1994 (addressing air and motor carriers). “Borrowing from the ADA’s preemption
clause, but adding a new qualification,…the FAAAA supersedes state laws ‘related to a price
route, or service of any motor carrier…with respect to the transportation of property.’” Dan’s
City, 133 S.Ct. at 1774 (quoting 49 U.S.C. § 14501(c) and adding emphasis). That added phrase
“‘massively limits the scope of preemption’ ordered by the FAAAA.’” Id. at 1778 (quoting City
of Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424, 449 (2002) (Scalia, J.
dissenting)). Under this restriction, “it is not sufficient that a state law relates to the ‘price, route,
or service’ of a motor carrier in any capacity; the law must also concern a motor carrier’s
‘transportation of property.’” Id. Because of the similarity of the preemption provisions
contained in the FAAAA and ADA, cases interpreting the ADA will be equally instructive and
controlling here. See Rowe v. New Hampshire Motor Transport Association, 552 U.S. 364, 370
(2008) (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71, 85 (2006)
(“when judicial interpretations have settled the meaning of an existing statutory provision,

8

repetition of the same language in a new statute indicates as a general matter, the intent to
incorporate its judicial interpretations as well”)).
The FAAAA preempts a state law (1) whenever the state law actually references the
rates, routes, or services of carriers or (2) if it has a “significant impact” on Congress’
deregulatory objectives. See Morales, 504 U.S. at 384 (the critical phrase, “relating to,”
expresses “a broad pre-emptive purpose”); Rowe, 552 U.S. at 371 (preemption occurs at least
where state laws have significant impact related to Congress’ deregulatory and preemptionrelated objectives); see also Travel All Over the World, Inc. v. Saudi Arabia, 73 F.3d 1423, 1432
(7th Cir. 1996) (state law is preempted by FAAAA whenever that law expressly refers to rates or
has a significant impact on them). Conversely, a state law will not be preempted if it affects
federal goals “in only a tenuous, remote, or peripheral…manner.” Dan’s City, 133 S. Ct. at 1778
(quoting Morales, 504 U.S. at 390); S.C. Johnson & Son, Inc. v. Transport Corp. of America,
Inc., 697 F.3d 544, 550 (7th Cir. 2012) (discussing Morales and its lesson that preemption is not
“a simple all-or-nothing question”).
B. Application
BeavEx can therefore show preemption is warranted either by pointing to an explicit
reference to rates, routes, or services of motor carriers in the language of the IWPCA or by
showing the IWPCA will have a significant economic effect upon them. See United Airlines, Inc.
v. Mesa Airlines, Inc., 219 F.3d 605, 609 (7th Cir. 2000). Neither the Supreme Court nor the
Seventh Circuit has ever held that a state employee compensation statute is preempted by either
the ADA or the FAAAA. Moreover, nearly all of the cases relied upon by BeavEx in its
memorandum in support of its motion involve laws and provisions either directly aimed at airline
and motor carriers or directly related to airline or motor carrier activity. See generally Rowe, 552

9

U.S. at 367 (law regulated the delivery of tobacco to customers within the state); Morales, 504
U.S. at 374 (guidelines contained detailed standards governing the content and format of airline
fare advertising); American Trucking Associations, Inc. v. City of Los Angeles, 559 F.3d 1046,
1048 (9th Cir. 2009) (mandatory concession agreements specifically for drayage trucking
services); Missing Link Jewelers, Inc. v. United Parcel Service, Inc., No. 09 C 3539, 2009 WL
5065682 at *1 (N.D. Ill. Dec. 16, 2009) (challenge of late fees assessed). In this case, the
IWPCA does not reference motor carriers and therefore has no direct connection to BeavEx’s
rates, routes, or services. In order to succeed with its preemption defense, BeavEx must
demonstrate that the Plaintiffs’ claim has a sufficient economic effect on its prices, routes, or
services to warrant its preemption. See Travel All Over the World, 73 F.3d at 1432 (claim is
preempted if either the state rule expressly refers to rates, routes, or services, or application of
the state’s rule would have significant economic effect upon them).
BeavEx contends that, as applied, the IWPCA claim is preempted because “if [drivers]
are engaged as employees and given an hourly rate, benefits and mileage, the cost of labor would
increase substantially.” BeavEx correctly states that the FAAAA may preempt the Plaintiffs’
claims even if the “state law’s effects on rates, routes or services ‘is only indirect.’” Rowe, 552
U.S. at 370 (quoting Morales, 504 U.S. at 386). However, the FAAAA’s preemption provision
does not have infinite reach.
BeavEx’s argument that the FAAAA preempts an Illinois wage law because it might
indirectly impact BeavEx’s prices and rates is tantamount to arguing immunity from all state
economic regulation. See Rowe, 552 U.S. at 375 (FAAAA does not generally preempt state
regulation that broadly prohibits certain forms of conduct and affects motor carriers only in their
capacity as members of the public); see also S.C. Johnson, 697 F.3d at 558 (“Changes to these

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background laws will ultimately affect the costs of labor inputs and in turn, the ‘price…or
service’ of the outputs. Yet no one thinks that the ADA or the FAAAA preempts these and the
many comparable state laws because their effect on price is too ‘remote.’ Instead, laws that
regulate these inputs operate one or more steps away from the moment at which the firm offers
its customer a service for a particular price.”); see, e.g., Difiore v. American Airlines, Inc., 646
F.3d 81, 89 (1st Cir. 2011) (state regulation is not preempted wherever it imposes costs on
carriers and therefore affects rates because costs “must be made up elsewhere, i.e., other prices
raised or charges imposed” as that would effectively exempt carriers from state taxes, state
lawsuits, and most state regulation of any consequence).
Without controlling law in this Circuit, the Court looks elsewhere for illustrations and
finds the First Circuit’s reasoning in DiFiore persuasive. A class of skycaps challenged
American Airlines’ curbside baggage check fee, claiming that it violated the Massachusetts Tip
Law. DiFiore, 646 F.3d at 81. The statute provided, in pertinent part, that “[n]o employer or
other person shall demand…or accept from any…service employee…any payment or deduction
from a tip or service charge given to such…service employee…by a patron.” Id. at 84; Mass.
Gen. Laws ch. 149, § 152A(b). In concluding that the Tips Law claim was preempted by the
ADA, the court distinguished the Tips Law from other employee compensation laws:
The dividing line turns on the statutory language “related to a price, route, or
service.” Importantly, the tips law does more than simply regulate the
employment relationship between the skycaps and the airline…the tips law has a
direct connection to air carrier prices and services and can fairly be said to
regulate both. As to the latter, American’s conduct in arranging for transportation
of bags at curbside into the airline terminal en route to the loading facilities is
itself a part of the “service” referred to in the federal statute, and the airline’s
“price” includes charges for such ancillary services as well as the flight itself.
Id. at 87. The court noted that the Supreme Court would be unlikely to free carriers from most
conventional common law claims for tort, from prevailing wage laws, and ordinary taxes
11

applicable to other businesses, even though such measures necessarily affect fares and services.
Id. Because the Tip law directly regulated how an airline service was performed and how price
was displayed, it went beyond regulating the airline as an employer or proprietor. Id. at 88.
The IWPCA is easily distinguishable from the Massachusetts Tip Law and instead fits the
mold of a “background law.” The law applies to all employers and employees in Illinois and lays
out guidelines for, among other things, pay periods, deductions from wages, and avenues to
pursue in the event of employment disputes. See generally 820 ILCS 115. Not only does the law
avoid targeting motor carriers, it only applies to the employment relationship between employers
and employees in general, therefore operating at least a step away from the point that BeavEx
offers services to customers. The IWPCA regulates the operation of the underlying employment
relationship which plays a role in setting the market price, like all economic regulation
necessarily does. This is not sufficient to support preemption. See S.C. Johnson, 697 F.3d at 558.
The IWPCA simply standardizes the employment arena within Illinois. Considering its purpose
and procedures, the IWPCA affects BeavEx only as a member of the public and the Court finds
no evidence that Congress set out to preempt these generic prevailing wage laws.
Moreover, even if the IWPCA were not a “background law” outside the ambit of the
FAAAA, BeavEx has failed to demonstrate the significant impact the law would have due to the
vagueness with which it describes its potential increased costs. BeavEx’s reliance on Sanchez v.
Lasership, 937 F. Supp.2d 730 (E.D. Va. 2013) exemplifies the absolute dearth of evidentiary
support BeavEx has provided regarding a significant impact finding. In Sanchez, the court found
a Massachusetts wage statute was preempted by the FAAAA because of the impact compliance
would have on the defendant’s courier prices. Sanchez, 937 F. Supp.2d at 747. In support of its

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argument, the defendant provided voluminous evidence of actual economic changes that would
occur were the Massachusetts wage law enforced:
Lasership reports that its 2012 operating profit for its Massachusetts operations
was $140,000. To offer health insurance to its employee-drivers, Lasership’s costs
would increase by $193,200 per ear. Providing workers’ compensation insurance
will cost Lasership up to $11.00 per $100.000 in earnings, ranging from $3,510 to
$4,290 per driver each year. Thus, to provide workers’ compensation insurance
for all seventy of Lasership’s current drivers, Lasership would incur costs ranging
from $245,700 to $300,000. Additionally, independent contractors pay their own
liability insurance, a cost that will be transferred to Lasership if it converts to an
employee-based model. That cost alone is $196,000 per year. By the Court’s
estimation, Lasership’s costs would increase by up to $689,200. This figure is
nearly five times Lasership’s profit margin for 2012.
Id. at 747-48.
Here, BeavEx has offered no numerical calculations of the effect enforcement of the
IWPCA would have on its business other than a claim that the creation of a human resources
department would incur $185,000 per year in labor costs. (Def. Rule 56.1 St. ¶ 33). As a
preliminary matter, the relevance of this number to the IWPCA inquiry is unknown as the law
imposes no such requirement on an Illinois employer. Even accepting that number as a legitimate
incurred cost, BeavEx offers no evidence other than unabashed conclusory statements that
compliance with the IWPCA will increase costs. BeavEx claims that if its drivers are engaged as
employees and given an hourly rate, benefits, and mileage, its costs of labor would increase
substantially. 3 (Def. Rule 56.1 St. ¶ 27). BeavEx offers zero facts in support of this conclusion. It
further asserts that converting couriers from independent contractors to employees would
dramatically increase its costs, “inescapably affecting its prices, routes and/or services.” BeavEx
similarly leaves this contention unsubstantiated. In fact, BeavEx’s entire argument regarding
significant impact is a regurgitation of the conclusory statements offered in the affidavit of
3

The Plaintiffs partially undermine this contention by offering a concrete example. In one week of work in 2011,
Plaintiff Daoud received a total pay of $1,202.50 for approximately 66 hours of work. Were he treated as an
employee and given minimum wage as required by Illinois law, he would have received a total pay of $651.75.

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Sandra Foster, the Senior Vice President for the company, and these opinions do not persuade
the Court that summary judgment is proper. See Diadenko v. Folino, 741 F.3d 751, 757-58 (7th
Cir. 2013) (“summary judgment is the put up or shut up moment in a lawsuit, when a party must
show what evidence it has that would convince a trier of fact to accept its version of the events”);
Stein v. Ashcroft, 284 F.3d 721, 726 (7th Cir. 2002) (summary judgment requires more than
vague, unsupported speculation and generalized allegations).
BeavEx had an opportunity to show the Court its operating profits utilizing its drivers as
independent contractors and an estimation of these numbers were the drivers deemed employees.
BeavEx could have offered its estimated change in customer rates due to increased costs. Instead,
the company appears to attempt to meet its challenge of demonstrating a significant impact by
relying on logic alone. Almost all state laws that affect a motor carrier’s transportation business
will have the kind of logical relation to its prices or services that BeavEx contends here. Wage
and hour laws clearly have a logical relation to a carrier’s prices and services because they
necessarily affect the costs a motor carrier incurs. Laws of this type, however, are not ordinarily
subject to preemption. See Rowe, 552 U.S. at 375. It is entirely plausible that imposition of the
IWPCA will alter BeavEx’s costs, but without any evidence whatsoever of what that alteration
will constitute, it is impossible for this Court to make a determination of significant impact.
Because no evidence has been introduced to confirm BeavEx’s argument that the IWPCA will
significantly impact its pricing and services, and for the reasons mentioned above, this Court
finds that the IWPCA is not preempted by the FAAAA as it applies to BeavEx, and its motion
for summary judgment is denied.

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II. Plaintiffs’ Motion for Class Certification
The decision to certify a class action rests within the discretion of the district court. See
Mira v. Nuclear Measurements Corp., 107 F.3d 466, 471 (7th Cir. 1997). “[T]he party seeking
class certification assumes the burden of demonstrating that certification is appropriate.” Retired
Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). Whether a plaintiff has
met his burden is measured by the “preponderance of the evidence” standard. See Messner v.
Northshore Univ. Healthsystem, 669 F.3d 802, 811 (7th Cir. 2012).
A party may pursue its claim on behalf of a class only if it can establish that the four
threshold requirements of Federal Rule of Civil Procedure 23 are met: (1) the class is so
numerous that joinder of all members is impracticable (numerosity); (2) there are questions of
law or fact common to the class (commonality); (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class (typicality); and (4) the representative
parties will fairly and adequately protect the interests of the class (adequacy). Fed. R. Civ.P.
23(a).
If the Plaintiffs meet this initial burden, they must then show that the proposed class
satisfies one of the three requirements set forth in Rule 23(b). See Oshana v. Coca-Cola Co., 472
F.3d 506, 513 (7th Cir. 2006). Where, as here, the Plaintiffs seek certification pursuant to Rule
23(b)(3), the Plaintiffs must show that “questions of law or fact common to the members of the
class predominate over any questions affecting only individual members (predominance), and
that a class action is superior to other available methods for fair and efficient adjudication of the
controversy (superiority).” Fed. R. Civ.P. 23(b)(3); see also Messner, 669 F.3d at 808, 814 n. 5.
In addition to the Rule 23 requirements, the Plaintiffs must also provide a workable class

15

definition by demonstrating that the members of the class are identifiable. See Oshana, 472 F.3d
at 513.
A. The Proposed Class
The Plaintiffs seek to certify a class comprising those who provided delivery driver
services for BeavEx in Illinois and were not treated as employees. Perhaps realizing that there
are certain deficiencies in the definition of the class proposed in the Complaint, the Plaintiffs
offer an alternative class definition in their reply in support of their motion for class certification.
The class defined in the complaint consists of “all persons who have provided delivery driver
services directly to BeavEx in the State of Illinois at any time during the relevant statutory
period, who were not treated as employees of BeavEx.” (Dkt. No. 34 at ¶ 33).
In their reply in support of their motion for class certification, the Plaintiffs proposed the
following alternative class definition: “All delivery drivers who contracted with BeavEx directly
to perform deliveries who did so on a full time basis, and who had amounts deducted by BeavEx
from their compensation checks.” (Dkt. No. 93 at 15).
The Seventh Circuit has not addressed the scope of the Court’s discretion to modify a
class definition at the certification stage. Although a district court has the authority to modify a
class definition at different stages in litigation, see In re Motorola Securities Litigation, 644 F.3d
511, 518 (7th Cir. 2011), district courts appear to be split on whether to hold a plaintiff to the
class defined in the complaint. Compare, e.g., Savanna Group, Inc. v. Trynex, Inc., No. 10 C
7995, 2013 WL 66181, at *2-3 (N.D. Ill. Jan. 4, 2013) (allowing amendment during certification
proceedings and finding it consistent with Rule 23); Bridgeview Health Care Ctr. Ltd. v. Clark,
09 C 5601, 2011 WL 4628744, at *2 (N.D. Ill. Sept. 30, 2011) (allowing amendment during
certification proceedings); with Heastie v. Community Bank of Greater Peoria, 125 F.R.D. 669,

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672 n. 3, 680 n. 10 (N.D. Ill. 1989) (“As the Court observed earlier, the class definition proposed
in [plaintiff’s] motion for class certification differs from that set forth in her complaint. The
Court has certified the class as originally proposed, but [plaintiff] may file an appropriate motion
to amend both her complaint and the class definitions we have set forth here...”). In this case, the
Court does not need to decide whether the amendment to the class definition is proper because
the Plaintiffs fail to meet the standards of Rule 23 under either definition.
B. The Plaintiffs Satisfy the Numerosity Requirement
Federal Rule of Civil Procedure 23(a)(1) requires that a class be “so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). A class consisting of more
than 40 members generally satisfies the numerosity requirement of certifying a class action. See,
e.g., Chavez v. Don Stolzner Mason Contractor, Inc., 272 F.R.D. 450, 454 (N.D. Ill. 2011); cf
Pruitt v. City of Chicago, 472 F.3d 925, 926 (7th Cir. 2006). In an interrogatory response,
BeavEx stated that during the relevant time period, there have been approximately 825
individuals who have provided courier services for BeavEx. BeavEx does not dispute, and thus
concedes, that it would be impracticable to join this number of plaintiffs in the present action.
Consequently, the Plaintiffs have met their burden regarding numerosity.
C. The Plaintiffs Satisfy the Commonality and Typicality Requirements
Federal Rule of Civil Procedure 23(a)(2) requires that “questions of law or fact common
to the class” exist. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (quoting Rosario v.
Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)). “A common nucleus of operative fact is usually
enough to satisfy” this requirement. Id. Typicality is closely related to commonality. See id. at
594. It requires “that the claims or defenses of the representative party be typical of the claims or
defenses of the class.” Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) (quoting

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Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir. 2000)). This means the claim
“arises from the same event or practice or course of conduct that gives rise to the claims of other
class members and…[the] claims are based on the same legal theory.” Oshana, 472 F.3d at 514
(quoting Rosario, 963 F.2d at 1018).
The Plaintiffs have satisfied both the commonality and typicality requirements. Their
claim arises from the same course of conduct that gives rise to the claims of the other class
members and their claims are based on the same legal theory. Specifically, BeavEx classified the
Plaintiffs and all other putative class members as independent contractors instead of employees
in alleged violation of the IWPCA. The entire class consists of drivers who provided services to
BeavEx subject to “Owner/Operator” agreements which classified them as independent
contractors. This type of formulaic behavior is sufficient for a finding of commonality. See
Keele, 149 F.3d at 594 (commonality is satisfied where defendant engaged in standardized
conduct towards members of the proposed class). There are also two common questions for the
class: (1) whether the drivers were employees or independent contractors; and (2) whether
BeavEx made improper deductions from the drivers’ pay.
D. The Plaintiffs do not Satisfy the Predominance Requirement of Rule 23(b)(3)
The real issue is whether common questions and evidence predominate a claim for
employment misclassification under the IWPCA such that it is properly suited to a class action.
Federal Rule of Civil Procedure Rule 23(b)(3) requires the Plaintiffs to demonstrate that
“questions of law or fact common to class members predominate over any questions affecting
only individual members, and that a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). In applying these
standards, courts focus on “the substantive elements of plaintiffs’ cause of action and inquire into

18

the proof necessary for the various elements.” Simer v. Rios, 661 F.2d 655, 672 (7th Cir. 1981).
The Supreme Court has held that “the predominance criterion is far more demanding” than “Rule
23(a)’s commonality requirement.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624 (1997).
At its hub, the Plaintiffs’ claim focuses on the alleged misclassification of drivers by BeavEx in
violation of the IWPCA. The determinant issue for class certification thus becomes whether
IWPCA independent contractor analysis can be satisfied by evidence common to the class.
The independent contractor exception to the IWPCA’s requirements provides that an
individual is not an employee if that individual is someone:
(1) who has been and will continue to be free from control and direction over the
performance of his work, both under his contract of service with his employer and
in fact; and (2) who performs work which is either outside the usual course of
business or is performed outside all of the places of business of the employer
unless the employer is in the business of contracting with third parties for the
placement of employees; and (3) who is in an independently established trade,
occupation, profession or business.
820 ILCS 115/2. The test is conjunctive, meaning the putative employer must demonstrate each
element of the exemption in order to demonstrate that the service provider is an independent
contractor. See Novakovic v. Samutin, 354 Ill. App.3d 660, 668 (1st Dist. 2004). Because the
onus is on the putative employer, the IWPCA creates a near-presumption that a worker is an
employee rather than an independent contractor. See Adams v. Catrambone, 359 F.3d 858, 864
(7th Cir. 2004).
The Plaintiffs have argued that the second and third prongs of the test may be resolved
through common evidence. BeavEx acknowledges that the second prong of the test does not
require individualized proof but, on the other hand, maintains that it must be allowed to present
individualized evidence regarding the first and third prongs of the independent contractor test. It
contends that because the IWPCA specifically requires the fact-finder to go beyond the

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owner/operator agreements in this case and consider the actual relationship between the parties
“in fact,” IWPCA independent contractor analysis is inherently incompatible with a class action.
Moreover, BeavEx claims that certifying the class based only on common evidence pertinent to
the second prong of the test would be equivalent to a decision on the merits. The Plaintiffs state
that to the extent that glossing over the first prong would constitute a decision on the merits, the
modern trend is for courts to consider the merits when granting class certification. See Szabo v.
Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001) (a judge may make a preliminary
inquiry into the merits under Rule 23).
There is really no dispute that the second prong of the independent contractor test can be
satisfied by common evidence. BeavEx has admitted that its sole business is the delivery and
pick-up of packages and that the Plaintiffs and putative class members worked as delivery
drivers. The problem presents itself when looking at the first and third prongs, specifically, the
first prong’s requirement of freedom from “control and direction…in fact.” See 820 ILCS 115/2
(emphasis added). Neither the Supreme Court nor any of the Circuits have provided guidance in
this department, and the district courts are split on the issue. Compare In re FedEx Ground
Package Sys., Inc. Employment Practices Litig., 273 F.R.D. 424, 489 (N.D. In. 2008) (“In re
FedEx I”) (the IWPCA poses questions upon which FedEx must be allowed to present driver-bydriver evidence); In re FedEx Ground Package Sys., Inc. Employment Practices Litig., 273
F.R.D. 516, 523 (N.D. In. 2010) (“In re FedEx II”) (“Even though the second prong of the
[IWPCA] test can be decided on common evidence, a determination that FedEx can’t rebut this
prong of the test, obviating the need to determine the other two elements, would be a decision on
the merits, which is improper at the class certification stage.”); Schwann v. FedEx Ground
Package Sys., Inc., No. 11-11094-RGS, 2013 WL 1292432, at *3 (D. Ma. Apr. 4, 2013) (the first

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and third prongs of a nearly identical Massachusetts independent contractor statute require
individualized factual inquiries); with De Giovanni v. Jani-King Intern., Inc., 262 F.R.D. 71, 85
(D. Ma. 2009) (finding that employment classification dispute under Massachusetts independent
contractor statute could be resolved by common evidence); Martins v. 3PD, Inc., No. 11-11313DPW, 2013 WL 1320454 at *6 (D. Ma. Mar. 28, 2013) (all three prongs of Massachusetts
independent contractor statute could be resolved through common evidence).
The Court finds the reasoning in both In re Fedex actions to be persuasive and directly on
point. The In re FedEx court dealt with the same independent contractor test at issue here and
this Court agrees with its conclusion. In the multi-district litigation In re FedEx, a group of
Illinois plaintiffs asserted a claim for a violation of the IWPCA, among other things. In re FedEx
II, 273 F.R.D. at 520. Specifically, the plaintiffs challenged FedEx’s practice of labeling its
delivery drivers as independent contractors instead of employees. In re FedEx I, 273 F.R.D. at
434. The plaintiffs contended that because FedEx maintained a categorical policy of classifying
its drivers as independent contractors, a class action was appropriate because common evidence
could resolve all claims. Id.
The court disagreed, finding that the IWPCA “seems to contemplate that even when the
‘employment’ agreement vests enough control in the hiring party to create an employment
relationship, the inquiry still must extend into the parties’ extracontractual relationship.” Id. at
489. Because the IWPCA broadens the scope of relevant evidence by placing the burden on the
hiring party, that party must be able to present individualized evidence of each worker. Id. In
conclusion, the court held that the effect of the contracts entered into did not predominate over
the individual circumstances. Id. at 490.

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The Plaintiffs here are requesting the same thing that was refused in In re FedEx. First,
although the Plaintiffs are correct in stating that an inquiry into the merits may be made at the
class certification stage, merits questions may be considered only to the extent that they are
necessary. See Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184,
1194-95 (2013); see also Messner, 669 F.3d at 811 (a district court should not turn class
certification proceedings into a dress rehearsal for a trial on the merits). Yet this is precisely what
the Court would be doing were it to ignore the first prong of the independent contractor test’s
requirement of freedom from control “in fact.” It is irrelevant that common evidence will show
that BeavEx is unable to satisfy the second prong of the test. See In re FedEx II, 273 F.R.D. at
523 (“a determination that FedEx can’t rebut this prong of the test, obviating the need to
determine the other two elements, would be a decision on the merits, which is improper at the
class certification stage”). At the class certification stage, the Court must look at the IWPCA test
in its entirety to determine if common evidence will predominate the resolution of its analysis. It
is not enough that the second prong can be decided utilizing common evidence when the first
prong so clearly requires a factual inquiry into the circumstances of each driver. See Carpetland
U.S.A., Inc. v. Illinois Dep’t of Employment Security, 201 Ill.2d 351, 374-383 (2002) (listing 25
factors to examine whether direction or control exists beyond the contract under the same test
used for the Unemployment Insurance Act). Because a finding of independent contractor status
requires the Court to examine each prong of the IWPCA test, including a requirement to probe
beyond the Operating Agreements in this case and into the actual practicing relationship between
the parties, BeavEx must be given the opportunity to rebut the control factor by presenting
individualized evidence pertaining to each driver, even if it will ultimately fail under the second
prong.

22

Moreover, the disparity in the testimony found in the parties’ respective declarations of
numerous past and present drivers supports BeavEx’s contention that differing factual
backgrounds will be found throughout the class. In their depositions, the Plaintiffs stated that
BeavEx does not permit drivers to take breaks, run personal errands, or even stop to use a
bathroom during routes. On the contrary, declarations filed by other drivers include statements
evidencing that personal breaks and errands could be completed during a route as long as the
delivery was completed within the timeframe agreed to. Also regarding control “in fact,” the
Plaintiffs stated that they did not engage in any other work during the time they provided
delivery services for BeavEx. Other drivers stated that they currently perform courier services for
other companies in addition to BeavEx. There are similar disparities regarding the ability to
negotiate price terms for routes, required cell phone usage, and ability to turn down on-demand
work. These variations in details concerning the control BeavEx maintained over the putative
class members supports the notion that individual facts and evidence are abound in an analysis
under the IWPCA independent contractor test.
At the class certification stage, the Court must examine the IWPCA test in its entirety.
Failure to acknowledge the individualized inquiry required by the first prong because the second
prong can be decided through common facts would be the same as ruling on the merits. Since
there is no way to employ generalized proof to prove control “in fact,” or lack thereof, under the
first prong of the IWPCA test, the Plaintiffs have failed to meet their burden under Rule 23(b)(3)
because common facts do not predominate. Accordingly, the motion for class certification is
denied.

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III. The Plaintiffs’ Motion for Summary Judgment
Although the motion for class certification is denied, the summary judgment motion as to
the named Plaintiffs is ripe and they are entitled to a ruling on their claim without additional
delay. Finding no disputed issue of material fact that the Plaintiffs were working within the usual
course and place of business of BeavEx when making deliveries, the Court grants the named
Plaintiffs’ partial motion for summary judgment on their IWPCA claim.
A. Employment Misclassification
The Court integrates the common undisputed facts from above and in so doing, views the
facts in the light most favorable to BeavEx. See McCann v. Iroquois Memorial Hosp., 622 F.3d
745, 752 (7th Cir. 2010) (in determining whether an issue of material fact exists, the court views
the facts in the light most favorable to the non-moving party, and draws all reasonable inferences
in that party’s favor). “[T]he plain language of Rule 56(c) mandates the entry of summary
judgment…against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The IWPCA defines an “employee” as “any individual permitted to work by an employer
in an occupation,” but excludes any individual:
(1) who has been and will continue to be free from control and direction over the
performance of his work, both under his contract of service with his employer and
in fact; and (2) who performs work which is either outside the usual course of
business or is performed outside all of the places of business of the employer
unless the employer is in the business of contracting with third parties for the
placement of employees; and (3) who is in an independently established trade,
occupation, profession or business.
820 ILCS §115/2. The alleged employer must demonstrate the exemption’s applicability and
each element of the exemption must be present for the service provider to be an independent

24

contractor. See Adams, 359 F.3d at 864 (IWPCA independent contractor test is written in the
conjunctive); see also Novakovic, 354 Ill. App.3d at 668 (same).
In this case, the Court need only address the second prong of the test: whether the
Plaintiffs’ performed work outside the usual course of BeavEx’s business or outside of BeavEx’s
places of business. BeavEx can satisfy this prong through evidence of either condition. See id. at
669. Regarding the first condition, “when considering the employer’s usual course of business,
Illinois courts focus on whether the individual performs services that are necessary to the
business of the employer or merely incidental.” Carpetland, 201 Ill.2d at 386. The second
condition is not limited only to its own home offices, but can extend to any location where
workers regularly represent an employer’s interest. Id. at 389-91.
The Plaintiffs have argued that it is undisputed that they were operating within the usual
course of BeavEx’s business because BeavEx is a delivery service and the Plaintiffs were
working as delivery drivers. Further, the Plaintiffs contend that they performed work within
BeavEx’s places of business, maintaining that the delivery routes were BeavEx’s places of
business. BeavEx’s only argument is that ruling on the Plaintiffs’ motion for summary judgment
before deciding on class certification violates the rule against one-way intervention.
The rule against one-way intervention “bars potential class members from waiting on the
sidelines to see how the lawsuit turns out and, if a judgment for the class is entered, intervening
to take advantage of the judgment.” Amati v. City of Woodstock, 176 F.3d 952, 957 (7th Cir.
1999). The apprehension is that a “victory by the plaintiff [on the merits] would be followed by
an opportunity for other members of the class to intervene and claim the spoils; a loss by the
plaintiff would not bind the other members of the class.” Premier Elec. Const. Co. v. National
Elec. Contractors Ass’n, Inc., 814 F.2d 358, 362 (7th Cir. 1987). Clearly, BeavEx’s concerns are

25

assuaged here as the Court has denied the Plaintiffs’ motion for class certification in this very
opinion. See Amati, 176 F.3d at 957. (“The rule does not appear to be addressed to the case in
which class certification is denied”).
Additionally, there is no problem with the Court determining both of Plaintiffs’ motions
at the same time. Although normally, the issue of class certification should be resolved before
determination of an action on the merits, see Thomas v. UBS AG, 706 F.3d 846, 849 (7th Cir.
2013), cases exist where it is appropriate to defer class certification until after a decision on the
merits. See Chavez v. Illinois State Police, 251 F.3d 612, 629 (7th Cir. 2001). In this case, the
Plaintiffs filed both their motions for class certification and partial summary judgment at the
same time. In the interest of judicial efficiency, the Court has simply examined both
concurrently, and this is not a unique stance. See generally, Smith v. Short Term Loans, No. 99 C
1288, 2001 WL 127303 (N.D. Ill. Feb. 14, 2001) (court looked at nine different motions at the
same time, including cross-motions for summary judgment and a motion to certify class); Allen
v. Aronson Furniture Co., 971 F. Supp. 1259 (N.D. Ill. 1997) (court ruled on cross-motions for
summary judgment before class certification); Hakim v. Accenture U.S. Pension Plan, 735 F.
Supp.2d 939 (N.D. Ill. 2010) (cross-motions for summary judgment made class certification
motion moot).
BeavEx only contended that ruling on the Plaintiffs’ motion for summary judgment
before ruling on the motion for class certification would be improper. This issue is now resolved.
BeavEx chose not to respond to the merits of the Plaintiffs’ motion for summary judgment in any
way, therefore waiving any argument against the merits it may have had. See Roe-Midgett v. CC
Services, Inc., 512 F.3d 865, 876 (7th Cir. 2008) (arguments not made in responsive briefs to
summary judgment are waived); Laborers’ Intern. Union of North America v. Caruso, 197 F.3d

26

1195, 1197 (7th Cir. 1999) (arguments not presented to the district court in response to summary
judgment motions are waived); see, e.g., De v. City of Chicago, 912 F. Supp.2d 709, 733 (N.D.
Ill. 2012) (if party opposing summary judgment fails to present reasons why summary judgment
should not be entered, the claim is waived and the nonmoving party will lose the motion) (citing
Reklau v. Merch. Nat’l Corp., 808 F.2d 628, 630 n. 4 (7th Cir. 1986)). Nevertheless, the Court
will provide a brief synopsis of the appropriateness of summary judgment in this case. See King
v. Schieferdecker, 498 Fed. Appx. 576, 580 (7th Cir. 2012) (courts can consider materials not
cited by either party in a ruling on summary judgment).
Any potential argument BeavEx could have made would fail even if properly stated.
BeavEx is a same-day delivery service company, and its primary function is to provide motor
vehicle transportation of property for compensation. The Plaintiffs were courier drivers who
performed delivery services for BeavEx. It is undisputed and beyond doubt that BeavEx’s
delivery drivers performed work in the usual course of BeavEx’s package and delivery business.
See AFM Messenger Service, Inc. v. Department of Employment Sec., 198 Ill.2d 380, 406 (2001)
(courier companies’ usual course of business is delivery of packages); Chicago Messenger
Service v. Jordan, 356 Ill. App.3d 101, 107 (1st Dist. 2005) (undisputed that couriers performed
services that were integral to and within the usual course of courier company’s business).
Moreover, the Plaintiffs were providing this work within BeavEx’s places of business.
BeavEx does not dispute that the Plaintiffs reported to BeavEx office locations to pick up route
manifests and materials. Even if the time spent at these office locations was minor, a courier
company’s “place of business” is not limited to its own offices. See AFM, 315 Ill. App.3d at 315
(the roadways were the usual place of business for a package delivery company); Jordan, 356 Ill.
App.3d at 115 (couriers represent the company’s interests when making deliveries); see, e.g., In

27

re FedEx Ground Package System, Inc. Employment Practices Litig., No. MDL-1700, 2010 WL
2243246 (N.D. In. May 28, 2010) (roadways, delivery routes, sales territories, and customer
premises constitute a company’s place of business when the worker is representing the
company’s interest).
BeavEx provides package pick-up and delivery services through a network of drivers.
BeavEx required the Plaintiffs to provide these services for BeavEx which were necessary to its
business of courier services. The Plaintiffs had to wear apparel with the BeavEx logo and a
BeavEx identification badge when performing deliveries. Although the Plaintiffs’ supplied their
own vehicles, they were required to have the BeavEx name, logo, phone number, and Illinois
Commerce Commission number on both sides. The Plaintiffs were required to use scanners and
record logs when delivering packages, and BeavEx would occasionally perform audits on the
Plaintiffs to ensure they were complying with the rules and policies. Even if the audits were not
applied uniformly, BeavEx’s policies underlying the audits show that BeavEx attempts to
maintain its image and reputation by reviewing its drivers’ performance while on route.
Even when the Court considers all the facts in BeavEx’s favor, BeavEx cannot satisfy its
burden of showing that the Plaintiffs’ work was outside all the places of its business. The
undisputed evidence shows that BeavEx drivers represent BeavEx’s interest when delivering and
picking up packages. As such, BeavEx is unable to show that the Plaintiffs were independent
contractors under the IWPCA test. Because there is no genuine issue of material fact that BeavEx
is unable to demonstrate the second prong of the exemption under the IWPCA, the Court grants
the named Plaintiffs’ motion for summary judgment as to Count II of their complaint.

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CONCLUSION
For the foregoing reasons, BeavEx’s motion for summary judgment and the Plaintiffs’
motion for class certification are denied, and the Plaintiffs’ motion for partial summary judgment
is granted as to the named plaintiffs.

________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: March 31, 2014

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