Blair et al v. Transam Trucking, Inc.

Filing 519

MEMORANDUM AND ORDER denying 443 Motion for Partial Summary Judgment; granting in part and denying in part 445 Motion for Summary Judgment; granting 446 Motion ; granting 447 Motion ; denying as moot 448 Motion to Exclude; denying as m oot 454 Motion to Exclude; denying as moot 455 Motion in Limine; denying as moot 456 Motion to Withdraw ; denying as moot 457 Motion to Exclude; denying as moot 460 Motion in Limine; granting 463 Motion for Judgment; denying as moot 465 Motion to Strike ; denying as moot 495 Motion for Sanctions; denying as moot 518 Motion in Limine. Signed by District Judge Eric F. Melgren on 3/28/2018. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LARRY BLAIR
and
CHARLIE DAVIS,
On Behalf of Themselves and All
Other Persons Similarly Situated,
Plaintiffs,

vs.

Case No. 09-2443-EFM-KGG

TRANSAM TRUCKING, INC.,
Defendant.

MEMORANDUM AND ORDER
In 2009, Plaintiffs Blair and Davis, on behalf of themselves and all other persons similarly
situated, filed suit alleging that Defendant TransAm Trucking, Inc. (“TransAm”) violated the Fair
Labor Standards Act (“FLSA”) and the Kansas Wage Payment Act (“KWPA”). Plaintiffs bring
this action as a collective action under the FLSA for minimum wage violations, and as a Rule 23
class action for KWPA violations. Plaintiffs, who are truck drivers, allege that TransAm failed to
pay them minimum wages and made improper deductions from their paychecks.

This action has been ongoing for nearly a decade. Plaintiffs have amended the complaint
twice, and the scheduling order has been revised six times. The final pretrial conference was
eventually held on June 22, 2017, and the Pretrial Order (Doc. 433) was entered the following day.
Plaintiffs state three claims in the Pretrial Order, which supersedes all previous pleadings.
Plaintiffs’ first claim is a collective action brought under the FLSA’s minimum wage provision,
29 U.S.C. § 206 by the two Named Plaintiffs and approximately 1,928 opt-in Plaintiffs. Plaintiffs
assert that TransAm has misclassified the FLSA class members as “independent contractors”
because the opt-in Plaintiffs were “employees” pursuant to the application of the “economic
realities” test for employee status under the FLSA, and that Defendant failed to pay them wages
in the amount of at least the applicable federal minimum hourly wage for all hours worked in the
relevant weekly pay periods.
Plaintiffs’ second claim is a Rule 23 class action brought under the KWPA by the two
Named Plaintiffs and an approximate 8,691 members class. Plaintiffs allege that TransAm has
misclassified the Rule 23 KWPA class members as “independent contractors” because the
Plaintiffs were “employees” pursuant to the application of the “right to control” test for employee
status under the KWPA, and TransAm failed to pay them wages in the amount of at least the
applicable federal minimum wage for all hours worked during numerous weekly pay periods, and
such unpaid minimum wages constituted “wages due” under the KWPA.
Plaintiffs’ third claim is also brought by the Rule 23 KWPA class. Plaintiffs again allege
that TransAm has misclassified them as “independent contractors” because they were “employees”
under the KWPA, and TransAm improperly deducted banking fees from the Plaintiffs’ wages and
thereby failed to pay the Plaintiffs all “wages due” in violation of the KWPA.

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There are fourteen motions that are now pending before this Court. The Court will address
the parties’ motions in five different sections and will set forth the applicable parties, facts, and
law in each respective section.1 In the first Section, the Court will address TransAm’s motion for
judgment on the pleadings. In Section II, the Court will address TransAm’s motion to decertify
the FLSA collective action. In Section III, the Court will address TransAm’s motion to decertify
the Rule 23 class. In Section IV, the Court will address both parties’ motions for summary
judgment. And finally, in Section V, the Court will address the remaining motions.
The Court has received extensive briefing on these motions, and deems oral argument
unnecessary.
I.
A.

TransAm’s Motion for Judgment on the Pleadings

Factual and Procedural Background
In the Pretrial Order, TransAm included an affirmative defense that it believed Plaintiffs’

second claim fails to state a claim upon which relief could be granted, and included a motion for
judgment on the pleadings as an additional motion TransAm intended to file before the dispositivemotion deadline.2 Plaintiffs did not object. The pleadings are now closed, and trial is set to begin
on June 19, 2018.
TransAm’s motion raises two issues. The first issue is whether unpaid “wages in the
amount of at least the applicable federal minimum wage” are recoverable as “wages due” under

1

There will be some duplication of the facts and law in the following sections.

2

Doc. 433, p. 24. Although TransAm included the general defense at issue—failure to state a claim—in the
Pretrial Order numerous times, TransAm failed to include in Section 8(b) of the Pretrial Order a Rule 12(c) motion
for judgment on the pleadings. Plaintiffs did not object to TransAm’s assertion that Plaintiffs had failed to state a
claim. After realizing its inadvertent omission, TransAm filed a motion to modify the Pretrial Order (Doc. 434) to
include in Section 8(b) a Rule 12(c) motion for judgment on the pleadings. The Court granted TransAm’s motion on
July 31, 2017 in a text entry (Doc. 476).

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the KWPA. Assuming that such a claim may be brought under the KWPA, the second issue
becomes whether the claim is preempted by the FLSA. For the reasons explained below, the Court
concludes that under Kansas law, the KWPA does not provide a cause of action for the recovery
of state or federal minimum wages. And to the extent that the KWPA could be interpreted to allow
a claim for unpaid federal minimum wages, it is preempted by the FLSA.
B.

Legal Standard
Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the

pleadings after the pleadings are closed as long as the motion is made early enough not to delay
trial.3 The standard for dismissal under Rule 12(c) is the same as a dismissal under Rule 12(b)(6).4
So to survive a motion for judgment on the pleadings, a complaint must present factual allegations,
assumed to be true, that “raise a right to relief above the speculative level,” and must contain
“enough facts to state a claim to relief that is plausible on its face.”5 All reasonable inferences
from the pleadings are granted in favor of the non-moving party.6 Judgment on the pleadings is
appropriate when “the moving party has clearly established that no material issue of fact remains
to be resolved and the party is entitled to judgment as a matter of law.”7

3

Fed. R. Civ. P. 12(c).

4
Myers v. Koopman, 738 F.3d 1190, 1193 (10th Cir. 2013); KMMentor, LLC v. Knowledge Mgmt. Prof’l
Soc., Inc., 712 F. Supp. 2d 1222, 1231 (D. Kan. 2010).
5

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007).

6

Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141 (10th Cir. 2012).

7

Id. (quoting Park Univ. Enters., Inc. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006)).

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C.

Discussion
In Count II of the Second Amended Complaint, Plaintiffs allege that “Defendant has had a

policy and practice of violating K.S.A. § 44-314(d) by refusing to allow its Leased Drivers to
receive all of their ‘wages due’ by refusing to pay them minimum wages as required by the FLSA
and by making improper deductions from their wages.”8 As outlined in the Pretrial Order,
Plaintiffs reiterate this claim verbatim in their “factual contentions” section, but modify the claim
slightly in their “legal claims” section.9 There, Plaintiffs claim that TransAm violated the KWPA
when it failed to pay Plaintiffs “wages in the amount of at least the applicable federal minimum
wage for all hours worked during relevant weekly pay periods, and such unpaid minimum wages
constituted ‘wages due’ under the KWPA.”10 Regardless, it is clear that Plaintiffs are using the
KWPA as a vehicle to recover FLSA-mandated minimum wages.
TransAm now argues that “minimum wages as required by the FLSA” are not recoverable
as “wages due” under the KWPA. According to TransAm, a Kansas state law claim for minimum
wages must be brought under the Kansas Minimum Wage Maximum Hours Law (the
“KMWMHL”). However, as TransAm points out, the KMWMHL expressly exempts employers

8

Doc. 88, p. 14.

9

Doc. 433, pp. 8, 23.

10

Doc. 433, p. 23. In full, Plaintiffs claim:

Defendant has misclassified the Plaintiffs in the Rule 23 KWPA class as “independent contractors”
because the Plaintiffs were “employees” pursuant to the application of the “right to control” test for
employee status under the KWPA, and Defendant failed to pay the opt-in Plaintiffs wages in the
amount of at least the applicable federal minimum wage for all hours worked during relevant weekly
pay periods, and such unpaid minimum wages constituted “wages due” under the KWPA, K.S.A.
§§ 44-313 et seq. (Emphasis added).
It appears that Plaintiffs mistakenly referred to “opt-in Plaintiffs,” italicized above, when they meant to say “Rule 23
Plaintiffs.” Count I is brought under the FLSA, which requires “similarly situated” plaintiffs to opt in to the collective
action. But this claim is a class action under Rule 23, which does not include such a requirement.

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covered by the FLSA, therefore Plaintiffs in the Rule 23 class are not entitled to recover FLSAmandated minimum wages. Plaintiffs counter that multiple cases in this District “have found that
the KWPA is not preempted by the FLSA,” and that the Kansas Supreme Court has held “that
unpaid [overtime] wages pursuant to the FLSA constituted wages due under the KWPA and
nothing in the FLSA suggests that violations of its minimum wage requirements are treated
differently than overtime.”11
As the issues raised in this motion implicate federal and state wage-and-hour laws, the
Court will begin with an overview of the applicable laws. Next, the Court will address whether
FLSA-mandated minimum wages are recoverable as “wages due” under the KWPA. Assuming
that such a claim may be brought under the KWPA, the Court will then address whether the claim
is preempted by the FLSA.
1.

The FLSA and Kansas Wage Laws

The FLSA, enacted by Congress in 1938, protects employees by prescribing the minimum
and overtime wages that employers must pay. The parties do not dispute that TransAm is an
employer subject to the FLSA.12 The federal minimum wage has been $7.25 per hour since 2007.13
The FLSA provides a private right of action to recover for violations, including a suit by
“one or more employees for and in behalf of himself or themselves and other employees similarly
situated.”14 “In 1947, Congress amended this provision to require that a plaintiff in a FLSA suit

11

Doc. 487, pp. 2–3.

12

Doc. 433, p. 2.

13

29 U.S.C. § 206.

14

29 U.S.C. § 216(b).

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‘give his consent in writing to become such a party and such consent is filed in the court in which
such action is brought.’ ”15 In other words, similarly situated plaintiffs must affirmatively “opt in”
to become a party to a FLSA “collective action.”16
Many states, such as Kansas, have also enacted their own wage laws. In Kansas, the
KMWMHL “is the state counterpart” to the FLSA and applies to claims for unpaid minimum and
overtime wages.17 However, the KMWMHL explicitly provides that it “shall not apply to any
employers and employees who are covered under the provisions of the [FLSA] . . . .”18 Just like
the FLSA, the KMWMHL requires employers to pay to each employee wages at $7.25 an hour.19
Kansas also has enacted the KWPA, which requires employers to pay employees all
“wages due” to the employee at least once per month.20 As explained by the Kansas Supreme
Court:
The KWPA controls several aspects of wages and benefits for the Kansas worker
that are not covered by the [FLSA]. The KWPA governs when wages must be paid,
the manner in which they must be paid, and the circumstances in which wages can
be withheld. The KWPA also requires employers to provide certain notice
requirements with respect to the payment of wages and the provision of benefits. It
provides for remedies and penalties for violation of its requirements. Notably, the
KWPA does not contain any express provision relating to the payment of overtime,
which is typically pursued under a FLSA claim.21

15
Knepper v. Rite Aid Corp., 675 F.3d 249, 253 (3d Cir. 2012) (quoting Portal-to-Portal Act of 1947, ch.
52 § 5(a), 61 Stat. 84, 87 (codified at 29 U.S.C. § 216(b))) (internal brackets omitted).
16

See Castaneda v. JBS USA, LLC, 819 F.3d 1237, 1245 (10th Cir. 2016).

17

Dollison v. Osborne Cty., 241 Kan. 374, 737 P.2d 43, 48 (1987).

18

K.S.A. § 44-1203(c).

19

K.S.A. § 44-1203(a)(2).

20

K.S.A. § 44-314(a).

21
Craig v. FedEx Ground Package System, Inc., 300 Kan. 788, 335 P.3d 66, 73 (2014) (citations omitted)
(emphasis added).

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Nor does the KWPA contain any express provision relating to the payment of minimum wages, or
the minimum rate of pay an employer must pay its employees.22 Unlike the KMWMHL, the
KWPA does not exempt employers covered by the FLSA.23
Group actions based on Kansas wage laws are not brought in federal courts as “collective
actions.” Instead, they are governed by Rule 23 of the Federal Rules of Civil Procedure. Under
Rule 23, suits may be filed as “class actions” on behalf of putative classes so long as certain
prerequisites are met.24 After class certification under Rule 23(b)(3), the court provides notice to
putative class members, providing information about the class action and granting them an
opportunity to exclude themselves or “opt-out” of the class.25 The class members will be bound
by the final judgment unless they choose to opt-out.26
Here, in Count I, Plaintiffs claimed that TransAm violated the FLSA’s minimum wage
provisions “by failing to pay the Plaintiffs and other similarly situated Leased Drivers a minimum
hourly wage during numerous applicable pay periods.”

After the collective action was

conditionally certified on August 20, 2015, approximately 1,928 opt-in Plaintiffs filed consents to
join the collective action. In Count II, Plaintiffs claimed that TransAm has had a policy and
practice of violating the KWPA, specifically K.S.A. § 44-314(d), “by refusing to allow its Leased
Drivers to receive all of their ‘wages due’ by refusing to pay them minimum wages as required by
the FLSA . . . .” After the class was conditionally certified under Rule 23, notice was sent to

22

See generally K.S.A. §§ 44-313–44-327.

23

See K.S.A. § 44-313(a).

24

Fed. R. Civ. P. 23(a)–(b).

25

Fed. R. Civ. P. 23(c)(2).

26

Fed. R. Civ. P. 23(c).

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putative class members, granting them an opportunity to opt-out. The class currently consists of
approximately 8,691 members.
Both Count I and Count II seek damages for TransAm’s alleged failure to pay Plaintiffs
minimum wages under the FLSA. This is known as a “hybrid action,” a recent trend that has
“troubled district courts across the country because of the inherent conflict between the opt-in
requirement of FLSA collective actions and the opt-out provisions of Rule 23(b)(3) class
actions.”27
2.

The KWPA Does Not Support a Claim for FLSA Minimum Wage Damages

The first issue to resolve is whether the KWPA supports a FLSA minimum wages claim
against a FLSA-covered employer for failing to pay the employee all “wages due.” As the Court
is construing a Kansas statute, it must be given the meaning it would have in the Kansas courts.28
Unfortunately, there are no decisions of the Kansas Supreme Court, or of lower courts in Kansas,
addressing this specific issue. The Court must therefore attempt to predict the interpretation that
would be given the statute by the Kansas courts, “based on its language, on the decisions of other
state appellate courts, and on the evident purposes of the statute.”29
The plain language of K.S.A. § 44-314(a) states: “[e]very employer shall pay all wages due
to the employees of the employer at least once during each calendar month, on regular paydays
designated in advance by the employer.” The KWPA defines “wages,” as “compensation for labor
or services rendered by an employee, whether the amount is determined on a time, task, piece,

27

Pliego v. Los Arcos Mexican Rests., Inc., 313 F.R.D. 117, 123 (D. Colo. 2016).

28

Williams v. United Parcel Serv., Inc., 527 F.3d 1135, 1140 (10th Cir. 2008).

29

Id.

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commission or other basis less authorized withholding and deductions.”30 And the italicized
language, “or other basis,” has been defined by the Kansas Department of Labor to include:
all agreed compensation for services for which the conditions required for
entitlement, eligibility, accrual or earning have been met by the employee. Such
compensation may include, but is not limited to, profit sharing, fringe benefits, or
compensation due as a result of services performed under an employment contract
that has a wage rate required or implied by state or federal law. Conditions
subsequent to such entitlement, eligibility, accrual or earning resulting in a
forfeiture or loss of such earned wage shall be ineffective and unenforceable.31
Applying these definitions, Kansas appellate courts have consistently held that “wages” are
determined by the “employment contract and employer policies.”32 But the Kansas courts have
not explicitly addressed whether the KWPA contemplates compensation owed because of statutory
rights—not contractual rights—such as the KMWMHL or the FLSA’s minimum wage provisions.
Based on the existing case law, and the evident purposes of the KWPA, the Court joins the majority
of this District and concludes that minimum wages are not recoverable under the KWPA.
a.

The Kansas Supreme Court did not hold that unpaid minimum wages
constitute “wages due” under the KWPA

In their entire argument, Plaintiffs cite just one Kansas case—Elkins v. Showcase, Inc.33—
for the proposition that unpaid minimum wages pursuant to the FLSA constitute “wages due” for
the purposes of the KWPA. In Elkins, a waiter brought a KWPA claim for “back wages” owed
under “an employment agreement” which provided payment at $2.01 per hour with the employer

30

K.S.A. § 44-313(c) (emphasis added).

31

K.A.R. § 49-20-1(d).

32

Dillard Dep’t Stores, Inc. v. State Dep’t of Human Res., 28 Kan. App. 2d 229, 13 P.3d 358, 362 (2000).

33

237 Kan. 720, 704 P.2d 977 (1985).

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“claiming full legal tip credit” of $1.34 per hour.34 In addition, the employer utilized a “tip pooling
system” whereby the employer would deduct from the tipped employees’ daily tips an amount
equal to 6% of each employee’s total daily sales (not tips), pool that money, and then pay nontipped
employees from the pool.35 As a result, the employer withheld 72% of the tips earned by the
waiter.36 The waiter did not provide written authorization for the 6% deduction.37
At the administrative level, the administrative hearing officer concluded that the employer
violated the K.S.A. § 44-319, which provided at the time:
(a) No employer may deduct, withhold or divert any portion of an employee’s
wages unless: (1) The employer is required or empowered to do so by state or
federal law; . . . . (3) the employer has a signed authorization by the employee for
deductions for a lawful purpose accruing to the benefit of the employee.38
In reaching this conclusion, the administrative hearing officer concluded that the employer’s
“system of deduction for tip pooling does not conform to requirements of the FLSA which places
a generally acceptable limit of fifteen percent (15%) of reported tips as the maximum amount an
employer may divert into a tip pool.”39
The first issue raised on appeal was whether the state administrative hearing officer had
jurisdiction to determine violations of the FLSA. The Elkins Court held that the hearing officer
did in fact have jurisdiction under the KWPA to determine whether the waiter’s wages had

34

Id. at 979–80.

35

Id. at 980–81. For example, on February 16, 1981, the waiter’s total sales were $312.19. The waiter
received $28.00 in tips from those sales. But the employer withheld $18.00—approximately 6% of the employee’s
total sales. Thus, the waiter only retained $10.00 of the tips he originally received.
36

Id. at 981.

37

Id.

38

Id. at 982; K.S.A. § 44-319(a)(1), (3).

39

Elkins, 704 P.2d at 981.

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wrongfully been withheld by the employer.40 As the waiter successfully argued, the hearing officer
was required to determine whether the employer violated § 44-319, “which provides, in substance,
that no employer may withhold, deduct, or divert any portion of an employee’s wages unless the
employer is required or empowered to do so by state or federal law.”41 Thus, the Court noted,
“the provisions of the FLSA are material only if an issue arises whether an employer is empowered
by that act to withhold any portion of an employee’s wages.”42 Indeed, the hearing officer only
considered the FLSA to determine whether the employer had authority to withhold 72% of the
waiter’s tips.43
The employer then argued that the hearing officer erred in concluding that the amounts
paid into the tip pool were “wages” under the KWPA. The Court agreed with the officer’s
determination that the amounts paid into the tip pool were “wages” under the KWPA.44 “Wages”
include “all agreed compensation for services including . . . fringe benefits for which the
conditions required for entitlement . . . have been met by the employee.”45 The employer argued
that the waiter “knew of the tip pooling arrangement when he was hired and further that this tip
pool was a condition precedent to the receipt of any amounts due to the plaintiff.”46 According to

40

Id. at 983.

41

Id. (emphasis in original).

42

Id.

43

See id. at 981–84.

44

Id. at 985–86.

45

Id. at 985 (quoting K.A.R. § 49-20-1(F))

46

Id. at 986.

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the employer, the waiter did not have a right to compensation from the tip pool until it was paid
out according to the terms of the employment contract.
The Elkins Court disagreed:
The respondent took advantage of the tip credit allowed under the Fair Labor
Standards Act to meet its minimum wage obligation. 29 U.S.C. § 203(m) provides
that for an employer to take advantage of tips being included within the calculation
of the minimum wage rate, the tips must be retained by the employee or pooled
among employees who customarily and regularly receive tips. Respondent’s
argument that the employee had no right to compensation from the tip pool until it
was paid out is clearly contrary within the meaning of the above section.47
Thus, the Court affirmed the administrative hearing officer’s judgment.
In the present case, Plaintiffs suggest that under Elkins, a KWPA claim is not limited to
“wages due” pursuant to the agreement of the parties, but it may encompass “wages due” pursuant
to the minimum wage provisions of the FLSA. The Court disagrees with this interpretation for
two reasons.
First, Elkins cannot be read to support the proposition that “wages due” encompasses more
than the wages due pursuant to the agreement of the parties. Elkins did not, at any point, address
the KWPA’s “wages due” provision (§ 44-314), which requires the employer to “pay all wages
due” to its employees.48 Rather, Elkins addressed § 44-319, which provides that an employer may
not “withhold, deduct or divert any portion of an employee’s wages.”49 This distinction is
important, because the “wages” disputed in Elkins were tips, paid by customers. The Court noted
that when an employee receives a tip, “customers, not the employer, have made the additional

47

Id.

48

See generally id. at 977–89; K.S.A. § 44-314(a) (emphasis added).

49

See Elkins, 704 P.2d at 982; K.S.A. § 44-319(a) (emphasis added).

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payment of a fringe benefit to the employee of the employer for receiving a standard of service.”50
Thus, the KWPA’s mandate for the employer to “pay all wages due”51 to the employee does not
apply to tips; those wages are paid by customers. However, tips are still “wages,” so an employer
can run afoul of § 44-319 by withholding, deducting, or diverting an employee’s earned tips.52
This does not mean, as Plaintiffs assert, that “every employer shall pay”53 any additional wages
beyond those agreed to by the parties.54
Second, Elkins does not suggest that the requirement to pay all “wages due” encompasses
“wages due” pursuant to the minimum wage provisions of the FLSA. Elkins in no way suggests
that the waiter was ever paid less than the federal minimum wage. The minimum wage at the time
was $3.35 per hour.55 The waiter was paid $2.01 per hour with the employer “claiming full legal
tip credit” of $1.34 per hour.56 In other words, so long as the waiter received at least $1.34 per
hour in tips, the employer complied with the FLSA. The waiter in Elkins claimed that he was
entitled to all the tips he received (which averaged $38.88 per day).57 He did not claim that the
tips he ultimately received (which averaged $10.96 per day) caused him to be paid less than the
federal minimum wage.

50

Elkins, 704 P.2d at 986 (internal quotations omitted).

51

K.S.A. § 44-314(a).

52

K.S.A. § 44-319(a).

53

K.S.A. § 44-314(a) (emphasis added).

54
See Fitzgerald v. City of Ottawa, Kan., 975 F. Supp. 1402, 1407 (D. Kan. 1997) (“The [KWPA] provides
a mechanism for penalizing employers who withhold payment of earned wages; it does not enhance contractual
remedies for those who enter into agreements with parties who happen to be their employers.”) (emphasis in original).
55

29 U.S.C. § 206(a) (1982).

56

Elkins, 704 P.2d at 979–80.

57

See id. at 981.

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Moreover, the Elkins Court only discussed the FLSA in determining “whether an employer
is empowered by that act to withhold any portion of an employee’s wages.”58 Again, the issue
was whether the employer was authorized by the FLSA to deduct a portion of the waiter’s tips
under § 44-319.59 Section 44-319 permits deductions from an employee’s wages if the employer
is “empowered to do so” by federal law.60 Under the FLSA at the time, an employer was not
empowered to deduct from a tipped employee’s tips if the employer also took advantage of the
FLSA’s tip credit.61 But employers that chose not to take the tip credit would have been
empowered to do so.62 The FLSA was only implicated in Elkins because § 44-319 expressly
incorporates federal law in determining whether an employer may make a deduction or not.
Section 44-314, which mandates that an employer must “pay all wages due” to its employees, does
not reference federal law for determining what “wages” are “due.”63
Thus, Elkins offers no support for Plaintiffs’ claim for minimum wages as “wages due”
under the KWPA. And Plaintiffs have provided no additional Kansas cases, nor has the Court
located any, suggesting that “wages due” encompasses the FLSA’s minimum wage provisions.64

58

Id. at 983.

59

Id. at 986.

60

K.S.A. § 44-319(a)(1) (emphasis added).

61

29 U.S.C. § 203(m) (1982).

62

See 29 U.S.C. § 203(m) (1982).

63
See K.S.A. § 44-314. Subsection (h) provides that “[t]he end of the pay period for which payment is made
on a regular payday shall be not more than 15 days before such regular payday unless a variance in such requirement
is authorized by state or federal law.” However, this provision has no bearing on whether the “wages due” include
the FLSA’s minimum wage.
64
Although not cited by the parties, the Court is aware of one case in which a Kansas district court awarded
damages at “the applicable minimum wage” for work an employee performed. See Coma Corp. v. Kan. Dep’t of
Labor, 283 Kan. 625, 154 P.3d 1080 (2007). However, in that case, the employee’s claim was for “earned but unpaid
wages” under an employment contract at a rate higher than the applicable minimum wage. But because the employee
was an undocumented worker, the district court determined that the contract was illegal and the employee was not

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b.

Four cases from this District have concluded that the KWPA does not
support a claim for unpaid overtime or minimum wages

In addition to Elkins, the parties cite to cases from this District that have ruled on this issue.
The majority of cases from this District have held that a claim for minimum wages cannot be
brought as a claim for “wages due” under the KWPA.
In Spears v. Mid-America Waffles, Inc.,65 Judge Murguia held that plaintiffs could not bring
a claim under the KWPA for “failing to pay minimum wages.”66 Judge Murguia agreed with
defendants that “plaintiffs cannot proceed with a claim under the KWPA because any claim for
failing to pay minimum wages in Kansas falls under the [KMWMHL]—not the KWPA.”67 “And
plaintiffs cannot state a claim under the KMWMHL because it is not applicable to employers and
employees covered by the FLSA.”68 Accordingly, Judge Murguia denied plaintiffs’ motion to
amend the complaint to bring a KWPA claim because it would be futile.69
Next, in Wheaton v. Hinz JJ, LLC,70 Judge Rogers followed Spears, holding that “a plaintiff
may only assert a claim under FLSA because Kansas law allows minimum wage violations to be

entitled to wages at the rate in the contract. Thus, the court awarded the employee damages at “the applicable
minimum wage”—less than he was entitled to under the contract.
Regardless, the Kansas Supreme Court reversed, determining that the contract was legal and enforceable, and
that the employee was entitled to wages agreed to in the contract. Id. at 625 syl. 2. Although the district court
implicated minimum wages in connection with a KWPA claim, Coma does not support the proposition that a minimum
wage claim can be brought under the KWPA. The claim was for wages earned under an employment contract, not for
wages the employee was entitled to under a minimum wage statute.
65

2011 WL 6304126 (D. Kan. 2011).

66

See id. at *4–5.

67

Id. at *4.

68

Id.

69

Id. at *5.

70

2014 WL 5311310 (D. Kan. 2014).

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pursued under the KMWMHL alone, which specifically exempts FLSA-covered employers.”71 In
doing so, Judge Rogers concluded that “[t]his case is distinguishable from Elkins because, unlike
this case, there was no allegation in Elkins that the restaurant employer failed to pay minimum
wage.”72
And in Larson v. FGX International, Inc.,73 Judge Marten held that the KWPA is “not a
proper mechanism” for asserting minimum wage and overtime claims.74 Judge Marten noted that,
“under Kansas law, non-FLSA overtime and minimum wage claims are brought through the
KMWMHL,” not the KWPA.75 And, when the employer is covered by the FLSA, claims for
minimum or overtime wages must be brought under the FLSA.76
And one additional case has been decided since the parties submitted their briefs. In
McGowan v. Genesis Health Clubs Management, Inc.,77 Judge Crabtree held that “plaintiff’s
KWPA claim for overtime violations fails to state a plausible claim for relief because Kansas law
precludes state statutory claims to recover overtime wages against FLSA-covered employers, like
defendant.”78

71

Id. at *2.

72

Id.

73

2015 WL 1034334 (D. Kan. 2015).

74

Id. at *3.

75

Id.

76

Id.

77

2018 WL 572052 (D. Kan. 2018).

78

Id. at *5.

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c.

Three cases from this District have allowed a KWPA claim for minimum or
overtimes wages to proceed

Plaintiffs respond that “multiple better-reasoned cases in this District have found that the
KWPA is not preempted by the FLSA.”79 But as TransAm pointed out in its reply, preemption is
only one of the two issues. If the KWPA does not support a cause of action for the recovery of
unpaid minimum wages, then the claim cannot proceed and the preemption analysis would not be
necessary. For this proposition, Plaintiffs rely solely on Elkins. Regardless, the Court has
considered the cases from this District cited by Plaintiffs. The Court does not find them to be
persuasive.
First, in Veale v. Sprint Corp.,80 the defendant argued that the plaintiff’s KWPA claim for
overtime should be dismissed because the KWPA does not provide a substantive cause of action
to seek overtime wages.81 Judge Van Bebber disagreed because the KWPA requires employers to
pay an employee’s “earned wages,” and allowed the claim to proceed.82 Recently, Judge Crabtree
declined to follow Veale, noting that “[t]he court never addressed—and it doesn’t appear that
defendant ever argued—that the KMWMHL governed plaintiff’s claim for overtime wages and
precluded such a claim if the defendant was covered by the FLSA.”83 The Court agrees with Judge
Crabtree. McGowan provided a more thorough analysis than Veale did, because McGowan

79

Doc. 487, p. 3 (emphasis in original).

80

1997 WL 49114 (D. Kan. 1997).

81

Id. at *2.

82

Id. (citing K.S.A. § 44-315(a)). Besides quoting § 44-315(a), the Veale Court did not analyze the issue
further. See generally id.
83

McGowan, 2018 WL 572052, at *5 (citing Veale, 1997 WL 49114, at *2).

-18-

specifically addressed the argument that the KMWMHL exempts the employer from liability for
Plaintiffs’ minimum wage claim under the KWPA,84 while Veale did not.85
The other two cases cited by Plaintiffs are Tarcha v. Rockhurst University Continuing
Education Center, Inc.86 and Rukavitsyn v. Sokolov Dental Laboratories, Inc.87 The Court finds
these cases unpersuasive for two reasons. First, both cases relied on Veale to reach the conclusion
that a plaintiff can seek damages under the KWPA for overtime “wages due” based on the FLSA.88
However, the Veale Court was presented with a conclusory argument and thus declined to
undertake a deeper analysis of the issue, while the Spears Court did. This Court finds Spears,
which concluded that a minimum wage claim cannot be brought under the KWPA, to be more
persuasive than Veale, which reached the opposite conclusion.

And because Tarcha and

Rukavitsyn relied on Veale without considering Spears,89 this Court also finds Tarcha and
Rukavitsyn to be unpersuasive.
Second, both of these cases relied on yet another case—Garcia v. Tyson Foods, Inc.90—
for the proposition that a plaintiff could use the FLSA to support a KWPA claim for unpaid

84

See id. at *5.

85

See Veale, 1997 WL 49114, at *2.

86

2012 WL 1998782 (D. Kan. 2012).

87

2012 WL 3066578 (D. Kan. 2012).

88

Tarcha, 2012 WL 1998782, at *3 (“Further, in Veale v. Sprint Corp., this Court rejected the argument that
a plaintiff cannot bring an action under the KWPA for overtime compensation based on overtime wages determined
by the FLSA.”) (citing Veale, 1997 WL 49114, at *2); Rukavitsyn, 2012 WL 3066578, at *2 (“Likewise, the court in
Veale v. Sprint Corp. rejected the argument that a plaintiff cannot bring an action under the KWPA for overtime
compensation based on overtime wages determined by the FLSA.”).
89

Neither Tarcha nor Rukavitsyn discussed, or even cited Spears, despite the fact that Spears was decided
the year prior.
90

766 F. Supp. 2d 1167, 1187 (D. Kan. 2011).

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overtime compensation.91 But Garcia does not actually support this conclusion, because “Garcia
did not involve allegations of unpaid overtime compensation.”92 Rather, the plaintiffs in Garcia
alleged that the employer did not pay them for time they spent at work donning, doffing, and
walking.93 Judge Lungstrum held that plaintiffs could assert KWPA claims based on these
allegations “to recover non-overtime wages owed but not paid by [the employer].”94 In footnote
15 of the opinion, Judge Lungstrum explained that plaintiffs—who had not opted to join the FLSA
class—could not seek to recover overtime wages under the KWPA because “employers like
[defendant] who are covered by the FLSA are expressly exempted from Kansas’ overtime
statute”—the KMWMHL.95

“Thus, permitting plaintiffs to recover overtime wages from

[defendant] under the KWPA is incompatible with the exemption provision of the KMWMHL and
would undermine the integrity of Kansas’ wage and hour statutory scheme as a whole.”96
Tarcha and Rukavitsyn reason that footnote 15 analyzed whether the plaintiffs who had not
opted to join the FLSA class could state viable claims under the KMWMHL.97 This Court
respectfully disagrees because the overall issue addressed in footnote 15 was whether plaintiffs

91
Tarcha, 2012 WL 1998782, at *4 (“The Court finds that plaintiffs may rely on the FLSA as the legal basis
for a KWPA claim.” (citing Garcia, 766 F. Supp. 2d at 1187)); Rukavitsyn, 2012 WL 3066578, at *2 (explaining that
“courts in the District of Kansas have held that plaintiffs may rely on the FLSA . . . to form the legal basis for KWPA
claims”) (citing Garcia, 766 F. Supp. 2d at 1187).
92

McGowan, 2018 WL 572052, at *4.

93

Garcia, 766 F. Supp. 2d at 1187.

94

Id. at 1186 (emphasis added).

95

Id. at 1186 n.15.

96

Id.

97

Tarcha, 2012 WL 1998782, at *3; Rukavitsyn, 2012 WL 3066578, at *3 n.35.

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could seek damages under the KWPA “for ‘all time,’ including overtime.”98 Footnote 15 held that
plaintiffs could not bring a KWPA claim for overtime wages against FLSA-covered employers.99
The obvious implication of this holding is that Kansas explicitly exempts FLSA-covered
employers from the KMWMHL’s minimum and overtime wage provisions, and plaintiffs cannot
avoid this restriction by bringing those same claims under the KWPA.100
Accordingly, the three cases cited by Plaintiffs are not persuasive. The Court elects to
follow the holdings reached in Spears, Wheaton, Larson, and McGowan.
d.

Legislative History and Canons of Construction

The Court agrees with the majority of this District: FLSA minimum and overtime wages
are not recoverable as “wages due” under the KWPA. “And, it predicts that the Kansas Supreme
Court—if presented with this issue—would reach the same conclusion as these cases.”101 Again,
the Kansas Supreme Court has already explained the full extent of the KWPA:
The KWPA governs when wages must be paid, the manner in which they must be
paid, and the circumstances in which wages can be withheld. The KWPA also
requires employers to provide certain notice requirements with respect to the
payment of wages and the provision of benefits. It provides for remedies and
penalties for violation of its requirements. Notably, the KWPA does not contain
any express provision relating to the payment of overtime, which is typically
pursued under a FLSA claim.102

98

Garcia, 766 F. Supp. 2d at 1186 n.15.

99

Id.

100

See McGowan, 2018 WL 572052, at *4 (declining to follow Tarcha and Rukavitsyn and concluding that
footnote 15 stands for the proposition that a claim for overtime wages against a FLSA-covered employer cannot be
brought under the KWPA).
101

Id. at *5.

102

Craig, 335 P.3d at 73 (citations omitted).

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Nor does the KWPA contain a provision relating to the payment of minimum wages. This is
because, when the KWPA was enacted, the FLSA already governed minimum wage rates and
established a private cause of action. The KWPA, however, “controls several aspects of wages
and benefits for the Kansas worker that are not covered by the [FLSA].”103 Indeed, “[t]he KWPA’s
primary concern was to protect low income workers who were shorted, docked, or cheated out of
pay for services performed.”104 Plaintiffs have cited no authority, nor has the Court lcoated any,
suggesting that the KWPA was intended to guarantee a minimum rate of pay for those services.105
The KWPA, therefore, was not intended to provide a separate means to recover for FLSA
violations, but to provide workers with a means to recover for violations not covered by the FLSA.
Thus, the KWPA provides a statutory mechanism for “enforcing an employment contract,”106 but
“it does not enhance contractual remedies for those who enter into agreements with parties who
happen to be their employers.”107 In essence, the requirement to pay all “wages due” is a breach
of contract provision.108 The KWPA allows employees to enforce their contractual rights to wages

103

Id. (emphasis added).

104

Id. (citing An Act Providing for Wage Payment and Collection: Hearing on H.B. 1429 Before the House
Comm. On Labor and Industry, 1973 Leg., 68th Sess. (Kan. 1973) (statement of T. McCune, Kansas Department of
Labor)).
105

The Kansas Legislature did not contemplate minimum wage protections until a few years after the KWPA
was enacted, when it enacted the KMWMHL. See Tarcha, 2012 WL 1998782, at *4 n.2 (noting that the KWPA was
enacted in 1973 and the KMWMHL was enacted in 1977).
106

See Campbell v. Husky Hogs, L.L.C., 292 Kan. 225, 255 P.3d 1, 7 (2011) (citation omitted).

107

Fitzgerald, 975 F. Supp. at 1407.

108

Cf. Sibley v. Sprint Nextel Corp., 315 F.R.D. 642, 653 n.14 (D. Kan. 2016) (“Under the applicable law of
Kansas, damages is an essential element of a claim for breach of contract. To prevail on a derivative KWPA claim,
the plaintiff must prove his employer failed to pay him ‘all wages due,’ which is the same showing.”) (internal citations
omitted).

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owed pursuant to the parties’ agreement. It does not allow employees to enforce other statutory
rights, such as the right to a minimum wage.
Furthermore, the relevant canons of construction demonstrate that the KMWMHL controls
all state-law minimum and overtime wage claims. As the Kansas Supreme Court explained in
Chelsea Plaza Homes, Inc. v. Moore,109 “[i]t is a cardinal rule of law that statutes complete in
themselves, relating to a specific thing, take precedence over general statutes or over other statutes
which deal only incidentally with the same question, or which might be construed to relate to it.”110
And when “there is a conflict between a statute dealing generally with a subject, and another
dealing specifically with a certain phase of it, the specific legislation controls in a proper case.”111
In Chelsea Plaza Homes, Inc., the defendant-tenant proceeded to trial on her counterclaim,
alleging violation of the Residential Landlord Tenant Act (“RLTA”) and the Kansas Consumer
Protection Act (“KCPA”).112 The counterclaim sought $2,000 in damages pursuant to the KCPA,
K.S.A. § 50-636, for each of three alleged violations of the RLTA. The three alleged violations
of the RLTA pertained to three paragraphs contained within the lease agreement. Each of the
RLTA violations “was averred to be a deceptive practice proscribed by K.S.A. 50-626(B)(8)” of
the KCPA.113 At conclusion of the trial, the district court concluded that “no violation of the
[KCPA] was proven.”

109

226 Kan. 430, 601 P.2d 1100 (1979).

110

Id. at 1102.

111

Id. (citing Garden City Educators’ Ass’n v. Vance, 224 Kan. 732, 585 P.2d 1057 (1978); State ex rel.
Mellinger v. Throckmorton, 169 Kan. 481, 219 P.2d 413 (1950)).
112

See Skeet v. Sears, Roebuck & Co., 760 F. Supp. 872, 876 (D. Kan. 1991) (“Chelsea Plaza Homes, Inc.
was a unique case in which the plaintiff could recover alternatively under the KCPA or the RLTA.”).
113

Chelsea Plaza Homes, 601 P.2d at 1102.

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On appeal, the Kansas Supreme Court first resolved “a significant issue inherent in the
case.” The Court recognized that “the counterclaim is the result of a hybridization of the [RLTA]
and the [KCPA],” and explained:
Specific alleged violations of the RLTA are used as the deceptive practices of the
[KCPA]. The reason for this is clear. The RLTA permits only the recovery of
Actual damages by a tenant, and those only when the prohibited provisions are
deliberately used by the landlord (K.S.A. 58-2547); whereas, the [KCPA], for
deceptive acts or practices (K.S.A. 50-626(B)(8)), permits recovery of actual
damages or $2000, whichever is greater, plus reasonable attorneys’ fees (K.S.A.
50-634 and 636 (now 1978 Supp.)). We must initially determine whether the
[RLTA] is a complete and specific act which takes precedence over the [KCPA] in
the area to which it pertains.114
In analyzing the two Acts, the Court noted that the KCPA governed all “consumer transactions,”
which was defined broadly.115 In fact, the KCPA was “clearly broad enough to include all leases
of real estate.” The RLTA, on the other hand, was enacted to govern “the more substantive aspects
of landlord-tenant relationships,” and only encompassed landlord-tenant transactions.116
Thus, the Court determined, the KCPA covered a very broad area of transactions; whereas,
the RLTA covered “one very specific small area of transactions, and is complete within itself for
that area.”117 Invoking the more-specific-statute rule of construction, the Court held that “for all

114

Id. at 1102.

115

Id. at 1103. “ ‘Consumer transaction’ means a sale, lease, assignment or other disposition for value of
property or services within this state (except insurance contracts and securities regulated under federal or state law) to
a consumer or a solicitation by a supplier with respect to any of these dispositions.” Id. at 1103 (quoting K.S.A. § 50624(C)).
116

Id. (quoting Clark v. Walker, 225 Kan. 359, 590 P.2d 1043 (1979)).

117

Id. at 1103–04. The RLTA was “complete within itself” because “the legislature set forth the obligations,
rights, and remedies of both landlords and tenants . . . .” Id. On the other hand, a statute—even if designed to cover
a specific, small area of transactions—is not considered “complete within itself” if the narrow statute does not address
“rights and remedies” available to those injured by violations of the statute. See Skeet, 760 F. Supp. at 876. In such
a case, a plaintiff would be entitled to pursue a claim under a broader statute that does provide remedies, even if the
conduct causing the injury fell within the purview of the narrower statute. See id.

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transactions within its purview the [RLTA] controls and preempts the field. The attempted
hybridization of the two acts herein has resulted in a sterile hybrid which is not viable, let alone
capable of reproducing itself.”118 Because the counterclaim should have been brought under the
RLTA—not the KCPA—the trial court did not err in determining that there was no violation of
the KCPA.119
Here, the general statute—the KWPA—is in conflict with the specific statute dealing with
the same subject—the KMWMHL. Chelsea Plaza Homes is directly on point. There, plaintiffs’
claim was brought under the KCPA, which broadly encompasses all “consumer transactions,” even
though the allegations only concerned “landlord-tenant transactions” and fell directly within the
purview of the narrower RLTA. Here, Plaintiffs’ claim is brought under the KWPA, which broadly
encompasses all “wages due,” even though the allegations only concern unpaid “minimum wages”
and fall directly within the purview of the narrower KMWMHL. And, just like the RLTA in
Chelsea Plaza Homes, the KMWMHL is “complete in itself.” It provides obligations, rights, and
importantly, a remedy for minimum wage violations—employees may bring an action in state
court to recover the full amount of unpaid minimum wages, as well as costs and reasonable
attorney fees.120

Accordingly, for all transactions within the KMWMHL’s purview the

KMWMHL controls and preempts the field.121

118

Chelsea Plaza Homes, 601 P.2d at 1104.

119

Id. at 1105.

120

K.S.A. § 44-1211(a).

121

See Chelsea Plaza Homes, Inc., 601 P.2d at 1104. This conclusion is supported by the fact that neither
party—nor the Court in its own research—have been able to find a Kansas case in which a claim for unpaid minimum
wages was brought under the KWPA. See Larson, 2015 WL 1034334, at *3 n.2 (“Notably, the court has not located
Kansas cases where KMWMHL claims were brought through the KWPA; neither have the parties provided such
authority.”).

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Thus, Plaintiffs “may only assert a claim under [the] FLSA because Kansas law allows
minimum wage violations to be pursued under the KMWMHL alone, which specifically exempts
FLSA-covered employers.”122 Since there appears to be no dispute that Plaintiffs and TransAm
are covered by the FLSA, Plaintiffs’ claim for unpaid minimum wages must be dismissed.
3.

Regardless, Plaintiffs’ Claim Under the KWPA is Preempted

Furthermore, “to the extent that the KWPA could be interpreted as a mechanism for
asserting FLSA-based claims for minimum or overtime wages, it would be preempted by §§ 206
and 207 of the FLSA.”123 “As a general rule, state law claims attempting to assert causes of action
expressly provided for by federal statute are preempted.”124 Federal law preempts state law “where
state law stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress” (“conflict preemption”).125 In these cases, the state law will be nullified
“to the extent that it actually conflicts with federal law.”126 “[A]ny state law, however clearly
within a State’s acknowledged power, which interferes with or is contrary to federal law, must

122

Wheaton, 2014 WL 5311310, at *2; see also McGowan, 2018 WL 572052, at *5 (“The court thus infers
from the plain language of the statute that the Kansas legislature, when enacting the KMWMHL, intended to exclude
FLSA-covered employees from state overtime wage laws.”); Larson, 2015 WL 1034334, at *3 (concluding that
KWPA claims for unpaid minimum wages against an FLSA-covered employer are “not plausible because they are
legally impossible. To allow otherwise would be incompatible with Kansas’s statutory wage and hour scheme.”).
123

Larson, 2015 WL 1034334, at *3.

124

Id. (citing Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1399 (10th Cir. 1997)); see also Hammond v.
Lowe’s Home Ctrs., Inc., 316 F. Supp. 2d 975, 979 (D. Kan. 2004) (“As a general proposition, state law claims that
merely seek to enforce the defined remedies of the FLSA are preempted.”).
125

Pueblo of Pojoaque v. New Mexico, 863 F.3d 1226, 1235 (10th Cir. 2017) (quoting Gade v. Nat’l Solid
Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992)) (internal quotations omitted).
126

Hillsborough Cty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985).

-26-

yield.”127 For example, the Tenth Circuit has previously held that state common law causes of
action for retaliatory discharge are precluded where an adequate statutory remedy exists under the
FLSA.128
a.

Differences between the FLSA and the KWPA

Here, the FLSA and the KWPA have similar goals.129 However, an important difference
between the statutes is that the FLSA establishes the amount of wages an employer must pay its
employees, while the KWPA does not. “Rather than providing substantive rights, the KWPA
provides a mechanism for recovering wages due.”130
In addition, the FLSA specifically includes an “opt-in” provision to join a representative
while the KWPA does not. Under the FLSA, “[n]o employee shall be a party plaintiff to any
[collective] action unless he gives his consent in writing to become such a party and such consent
is filed in court . . . .”131 The FLSA’s “opt-in” requirement was added to “strike a balance to
maintain employees’ rights but curb the number of lawsuits.”132

127
Fielder v. Casey, 487 U.S. 131, 138 (1988) (quoting Free v. Bland, 369 U.S. 663, 666 (1962)) (internal
quotation marks omitted); see also Perez v. Campbell, 402 U.S. 637, 652 (1971) (“[A]ny state legislation which
frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause.”).
128

Conner, 121 F.3d at 1399.

129

See Craig, 335 P.3d at 73 (“The KWPA’s primary concern was to protect low income workers . . . .”);
Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (“The principal congressional purpose in
enacting the [FLSA] was to protect all covered workers from substandard wages and oppressive working hours . . . .”).
130

Koehler v. Freightquote.com, Inc., 2013 WL 3878170, at *2 (D. Kan. 2013) (citing Garcia, 766 F. Supp.

2d at 1187).
131

29 U.S.C. § 216(b).

132

De Ascencio v. Tyson Foods, Inc., 342 F.3d 301, 306 (3d Cir. 2003) (quoting 93 Cong. Rec. 2,082 (1947));
see also 93 Cong. Rec. 2,087 (“[T]he attention of the Senate is called to a dramatic influx of litigation, involving vast
alleged liability, which has suddenly entered the Federal courts of the Nation.”).

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b.

Plaintiffs’ KWPA claim is duplicative of Plaintiffs’ FLSA claim and
therefore preempted by the FLSA

The Tenth Circuit has not directly addressed whether the FLSA preempts state-law wage
claims that would allow plaintiffs to pursue a Rule 23 class action and a FLSA collective action
simultaneously. Although the FLSA allows states to impose a higher minimum wage, it does not
explicitly authorize states to create alternative remedies for FLSA violations.133
However, the Fourth Circuit has held that the FLSA preempts state law claims that “depend
on establishing that [the defendant] violated the FLSA.”134 In Anderson, plaintiffs brought claims
for breach of contract, negligence, and fraud—claims that provided remedies that were more
generous than those provided in the FLSA enforcement scheme.135 These “state claims all
depend[ed] on establishing that [defendant] violated the FLSA . . . .”136 The Fourth Circuit
explained that “ ‘the mere existence of a federal regulatory or enforcement scheme’—even if the
scheme is an appreciably detailed one—‘does not by itself imply preemption of state
remedies.’ ”137

Yet, the court concluded that the FLSA contains “an unusually elaborate

enforcement scheme,” and this enforcement scheme provides the exclusive remedy for enforcing

133
See 29 U.S.C. § 218(a) (“No provision of this chapter or of any order thereunder shall excuse
noncompliance with any . . . State law or municipal ordinance establishing a minimum wage higher than the minimum
wage established under this chapter or a maximum work week lower than the maximum workweek established under
this chapter . . . .”); Pettis Moving Co. v. Roberts, 784 F.2d 439, 441 (2d Cir. 1986) (“Section 218(a) of the FLSA
explicitly permits states to set more stringent overtime provisions than the FLSA.” (internal citation omitted)).
134

Anderson v. Sara Lee Corp., 508 F.3d 181, 193 (4th Cir. 2007).

135

Id. at 192 (noting that contract claim was arguably subject to a longer limitations period, and punitive
damages may be awarded under North Carolina law for proof of fraud, malice, or willful or wanton conduct).
136

Id. at 193.

137

Id. (quoting English v. Gen. Elec. Co., 496 U.S. 72, 87 (1990)).

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the Act.138 The court reasoned that § 216(b)–(c) contains “special feature[s] that would be
rendered superfluous if workers were able to circumvent that scheme while pursuing their FLSA
rights.”139 Accordingly, the FLSA preempted the duplicative state law claims.
However, some courts have held that the FLSA did not preempt state-law wage claims
when the state law provided additional rights not guaranteed by the FLSA.140 Take one of this
Court’s prior opinions for example. In Tommey v. Computer Sciences Corp.,141 the plaintiff
brought quantum meruit and unjust enrichment claims under Kansas common law alongside a
FLSA claim for unpaid overtime wages. This Court noted that some courts have allowed a claim
for unjust enrichment or quantum meruit to proceed when the claim seeks something more than
what the FLSA can provide—such as regular wages not paid at the contracted rate or “gap time”
wages. The Court held that plaintiff’s complaint contained sufficient facts to encompass a
quantum meruit claim for unpaid “gap time” wages. As plaintiff was seeking more than what she
was entitlted to under the FLSA, the Court allowed her quantum meruit claim to proceed.
However, the Court dismissed the claim to the extent she was seeking to recover overtime
wages.142 And with regards to the unjust enrichment claim, this Court dismissed the claim because

138

Id. at 192, 194.

139

Id. at 194.

140

See, e.g., Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1154 (9th Cir. 2000) (concluding that state
fraud claims do not conflict with FLSA’s purpose of protecting employees any more than claims for wrongful death,
assault, or murder, but noting that claims “that are directly covered by the FLSA (such as overtime and retaliation
disputes) must be brought under the FLSA”).
141

2013 WL 1000659 (D. Kan. 2013).

142

Id. at *2.

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the allegations were “duplicative of Plaintiff’s FLSA claim and therefore preempted by Plaintiff’s
FLSA claim.”143
Thus, the FLSA does not preempt a state-law claim when the state statute provides more
substantive rights than the FLSA. But, with the exception of one Northern District of Iowa case,
“courts that have directly considered the preemption issue have found that the FLSA preempts
duplicative state-law claims.”144
Such is the case here.

Plaintiffs claim they were “employees,” misclassified as

“independent contractors,” and not paid wages in the amount of “at least the applicable federal
minimum wage for all hours worked during relevant weekly pay periods, and such unpaid
minimum wages constituted ‘wages due’ under the KWPA.” The KWPA does not provide any
substantive rights; it merely provides a mechanism to recover wages that are due.145 Thus,
Plaintiffs’ KWPA claim for minimum wages is duplicative of the FLSA claim. Plaintiffs are not
seeking anything more than what the FLSA provides.
The Court agrees with the Fourth Circuit’s reasoning that allowing Plaintiffs to use
procedures other than those established in § 216(b) would render that section superfluous.146 In
particular, by using the KWPA to enforce their FLSA rights, Plaintiffs nullify § 216(b)’s opt-in

143

Id. at *3.

144
Zanders v. Wells Fargo Bank N.A., 55 F. Supp. 3d 1163, 1173 (S.D. Iowa 2014). See generally
Williamson, 208 F.3d at 1153–54 (noting that claims directly covered by the FLSA—such as overtime and retaliation
disputes—must be brought under the FLSA, but finding that the plaintiffs’ fraud claim was not preempted where the
employer’s conduct was not covered by any FLSA provision); Anderson, 508 F.3d at 193 (holding that the FLSA
preempts state law claims that “depend on establishing that [the defendant] violated the FLSA”); but cf. Bouaphakeo
v. Tyson Foods, Inc., 564 F. Supp. 2d 870, 886 (N.D. Iowa 2008) (noting that “[i]n fact, nearly every court to consider
the issue recognizes that state law claims that merely duplicate or depend on the FLSA are preempted by federal law,”
despite holding the opposite).
145

Koehler, 2013 WL 3878170, at *2 (citing Garcia, 766 F. Supp. 2d at 1187).

146

Anderson, 508 F.3d at 184.

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procedure. As enacted, the FLSA did not require FLSA collective action plaintiffs to affirmatively
opt in.147 But in 1947, Congress amended the FLSA because the Act was being “interpreted
judicially in disregard of long-established customs, practices, and contracts between employers
and employees, thereby creating wholly unexpected liabilities . . . upon employers” and that if
such interpretations of the Act were to continue, “the payment of such liabilities would bring about
financial ruin of many employers . . . .”148 The opt-in requirement was thus included to seek “a
balance between protecting employees and shielding employers from excessive liability.”149 As a
KWPA claim brought under Rule 23 does not require plaintiffs to affirmatively opt in, the Rule 23
class is much larger than the FLSA class.150 The KWPA therefore “stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.”151
D.

Conclusion
Plaintiffs “may only assert a claim under [the] FLSA because Kansas law allows minimum

wage violations to be pursued under the KMWMHL alone, which specifically exempts FLSAcovered employers.”152 Since there appears to be no dispute that Plaintiffs and TransAm are
covered by the FLSA, Plaintiffs’ claim for unpaid minimum wages must be dismissed.

147

See 29 U.S.C. § 216 (1940) (“Action to recover such liability may be maintained in any court of competent
jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly
situated, or such employee or employees may designate an agent or representative to maintain such action for and in
behalf of all employees similarly situated.”).
148

Portal-to-Portal Act of 1947, 61 Stat. 84 (1947) (codified at 29 U.S.C. § 251).

149

Zanders, 55 F. Supp. 3d at 1174.

150

In this case, there are approximately 1,928 opt-in Plaintiffs in the FLSA collective action, but there are
approximately 8,691 class members in the Rule 23 class. Doc. 433, p. 6.
151

Pueblo of Pojoaque, 863 F.3d at 1235 (quoting Gade, 505 U.S. at 98) (internal quotations omitted).

152
Wheaton, 2014 WL 5311310, at *2; see also McGowan, 2018 WL 572052, at *5; Larson, 2015 WL
1034334, at *3.

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Further, “to the extent that the KWPA could be interpreted as a mechanism for asserting
FLSA-based claims for minimum or overtime wages, it would be preempted by §§ 206 and 207 of
the FLSA.”153 TransAm is thus entitled to judgment as a matter of law on Plaintiffs’ KWPA claim
for minimum wages.
II.
A.

TransAm’s Motion to Decertify the FLSA Class (Doc. 447)

Factual and Procedural Background
Plaintiffs’ first claim is brought under the FLSA’s minimum wage provision, 29

U.S.C. § 206. Plaintiffs assert that TransAm misclassified the Plaintiffs in the opt-in FLSA
collective action as “independent contractors” because the Plaintiffs were “employees” pursuant
to the application of the “economic realities” test for employee status under the FLSA, and that
Defendant failed to pay the opt-in Plaintiffs wages in the amount of at least the applicable federal
minimum hourly wage for all hours worked in the relevant weekly pay periods.
This Court conditionally certified the collective action on August 20, 2015.154 In so doing,
the Court concluded that the Leased Drivers were “similarly situated” and were “together the
victims of a single decision, policy or plan” for purposes of the FLSA:
Plaintiffs maintain that potential class members are similarly situated because they
all received the same training, were provided with the same handbook of policies,
and entered into the same independent contractor and equipment lease agreements.
They all were paid under similar per-mileage pay policies by TransAm. They all
had essentially the same job duties of driving to make deliveries. They all were
classified as independent contractors. And they all were prohibited from driving
for anyone other than TransAm.155

153

Larson, 2015 WL 1034334, at *3.

154

Doc. 146.

155

Doc. 146, p. 19; Blair v. TransAm Trucking, Inc., 2015 WL 5006076, at *9 (D. Kan. 2015).

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The conditionally certified FLSA class was defined as: “[d]rivers who were classified by
Defendant as independent contractors and who leased trucks from TransAm Leasing, Inc. and
performed driving work between November 5, 2008 to [August 20, 2015].”156 After notice was
sent out, approximately 1,928 individuals opted in to the collective action (referred to in this
section as “Leased Drivers”).
Through the course of discovery, TransAm took the deposition of 52 Leased Drivers.
Additionally, Plaintiffs’ designated experts conducted a survey of the Leased Drivers that
“contains 27 straight forward questions that go to TransAm’s ability to control various tasks and
economic realities of the driver, and whether or not TransAm encouraged drivers to become
Leased Drivers rather than employee drivers, all of which are relevant and material to the issue of
whether the Leased Drivers are actually employees of TransAm.”157 These questions included:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)

whether they applied to work as an employee (company driver) or
independent contractor;
whether they were told they would have to wait before they could start work
if they wanted to be a company driver;
whether TransAm encouraged them to be an independent contractor instead
of a company driver;
whether they felt pressured to sign the “independent contractor” and truck
leasing agreements in order to get a job;
whether TransAm encouraged them to become an independent contractor
with promises of greater earnings and miles;
whether they tried to switch back to become a company driver but were
refused by TransAm;
whether TransAm gave them time to consider the documents before signing
up as an independent contractor;
whether the contractor and leasing documents were easy to read understand;
their amount of prior experience prior to driving for TransAm;
whether they put any money down to reduce monthly payments at the time
of signing the documents to become an independent contractor;

156

Doc. 146, p. 17; Doc. 148, p. 17.

157

Doc. 491, pp. 3–4. Plaintiffs’ experts sent the survey to 1,732 Leased Drivers, and received 477 completed

responses.

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(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(25)
(26)
(27)

whether they were able to negotiate the terms of the agreements;
whether TransAm allowed them to use their truck to haul loads for third
parties;
whether they had information available about “more desirable or higher
paying loads” available to them when TransAm assigned a load;
whether they received any negative consequences if they refused a load;
whether they relied on TransAm to provide insurance;
whether TransAm placed a Drive Cam in their truck to monitor them;
whether TransAm monitored their truck location and speed via GPS;
whether TransAm required them to have maintenance and repairs done by
TransAM;
whether TransAm prohibited mechanical or cosmetic modification of the
truck;
whether TransAM required them to submit truck for inspections;
whether TransAm intervened due to a delivery problem and took their load
away by sending another truck and driver;
whether TransAm allowed them to advertise or market their independent
services;
whether they were able to negotiate freight rates with TransAm;
whether they attempted to hire a driver to work for them;
if “yes” to 24, whether TransAm exercised control and required its approval
over who they could hire;
whether TransAm specified a time of pickup and delivery on loads; and
whether TransAm mandated the maximum speeds they could drive.158

The 477 respondents were only able to offer a unanimous response to one question: they
all answered that they did not put any money down to reduce weekly payments when they signed
their independent contractor and lease agreement.159 Thus, having reviewed the discovery,
TransAm now argues that there are numerous significant distinctions between the Leased Drivers.
TransAm contends: “[g]iven that a liability determination under the FLSA, as well as TransAm’s
defenses in this matter, will depend upon the varying reported experiences by the drivers on the
misclassification issue, as well as a weekly individualized analysis as to whether liability exists, it

158

See Doc. 491-2.

159

Doc. 491-2, p. 4.

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is clear continued certification of the opt-in collective action is inappropriate.”160 Therefore,
TransAm argues, the Court should decertify the collective action.
In response, Plaintiffs argue that the factual distinctions between the Leased Drivers
identified by TransAm have no bearing on the central facts that bind the Leased Drivers together
and constitute their commonly shared legal basis as “employees” under the FLSA: their economic
dependence on TransAm. Plaintiffs also argue that the fact that damages would need to be
calculated on a week-by-week basis for each Leased Driver is no basis for decertification.
B.

Discussion
The FLSA permits legal action against any employer “by any one or more employees for

and in behalf of himself or themselves and other employees similarly situated.”161 Unlike class
actions under Federal Rule of Civil Procedure 23(b)(3), a collective action brought under § 216(b)
of the FLSA includes only those similarly situated individuals who opt in to the class.162 But the
FLSA does not define what it means to be “similarly situated.” Instead, the Tenth Circuit has
approved an ad-hoc, two-step approach to § 216(b) certification claims.163 The ad-hoc approach
employs a two-step analysis for determining whether putative opt-in plaintiffs are similarly
situated to the named plaintiffs.164

160

Doc. 452, p. 2.

161

29 U.S.C. § 216(b).

162

See 29 U.S.C. § 216(b).

163

Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001).

164

Id. at 1102–03.

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First, in the initial “notice stage,” the court “determines whether a collective action should
be certified for purposes of sending notice of the action to potential class members.”165 The notice
stage “require[s] nothing more than substantial allegations that the putative class members were
together the victims of a single decision, policy, or plan.”166 The standard for conditional
certification at the notice stage is lenient and typically results in certification for the purpose of
notifying potential plaintiffs.167
During the second stage, which occurs at the conclusion of discovery, a defendant typically
files a motion to decertify the collective action.168 Upon ruling on a motion to decertify, “the court
then makes a second determination, utilizing a stricter standard of ‘similarly situated.’ ”169 In
determining whether plaintiffs are similarly situated, “a court reviews several factors, including
(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses
available to defendant which appear to be individual to each plaintiff; [and] (3) fairness and
procedural considerations.”170 The decision whether to decertify a collective action is within the
District Court’s discretion.171

165

Brown v. Money Tree Mortg., Inc., 222 F.R.D. 676, 679 (D. Kan. 2004) (citation omitted).

166

Thiessen, 267 F.3d at 1102 (citations and internal quotations marks omitted) (alteration in original).

167

See id. at 1103.

168

Thiessen, 267 F.3d at 1102–03.

169

Id. at 1103.

170

Id.

171
Id. at 1102 (citations omitted). See also In re Chipotle Mexican Grill, Inc., 2017 WL 4054144, at *2 (10th
Cir. 2017) (noting that the district court generally has discretion to deny certification for trial management reasons).

-36-

1.

Plaintiffs’ factual and employment settings are not similar

“With respect to the first factor, courts have held general allegations of an overarching
policy to be insufficient—instead requiring ‘substantial evidence of a single decision, policy or
plan.’ ”172 “The court will compare the named plaintiffs with the opt-ins, and evaluate the
similarities and dissimilarities in employment responsibilities and circumstances.”173

Here,

Plaintiffs claim that TransAm misclassified the Leased Drivers as independent contractors and
failed to pay them the minimum wage as required by the FLSA.174 However, in determining
whether there exists substantial evidence of a “single decision, policy or plan,” the fact that the
Leased Drivers were classified as “independent contractors” is irrelevant.175 In other words, the
Court must determine whether the Leased Drivers’ experiences were similar enough to say that
they shared a factual nexus regarding their status as “employees.” “Decertification will be granted
where the claimants’ responsibilities and duties were so varying that it cannot be said they share a
factual nexus based on a particular policy or practice.”176

172

1 McLaughlin on Class Actions § 2:16, Limitations on applicability of class action device—Collective
actions under the Fair Labor Standards Act (14th ed. 2017) (quoting Moss v. Crawford & Co., 201 F.R.D. 398, 409–
10 (W.D. Pa. 2000)).
173

Id.

174

Because the FLSA only provides protections to “employees,” the central issue in this case is whether
Plaintiffs were misclassified as “independent contractors.” See 29 U.S.C. § 206.
175
See Green v. Harbor Freight Tools USA, Inc., 888 F. Supp. 2d 1088, 1098 (D. Kan. 2012) (“The Court
finds that this is not a case in which Plaintiffs can rely on a common job description as evidence that a collective action
[is] appropriate. A job title alone is insufficient to establish the exempt status of an employee.”) (internal quotation
omitted).
176
1 McLaughlin on Class Actions § 2:16, Limitations on applicability of class action device—Collective
actions under the Fair Labor Standards Act (14th ed. 2017). See also Russell v. Ill. Bell Tele. Co., 721 F. Supp. 2d
804, 814 (N.D. Ill. 2010) (decertifying individual claims arising from testimony that “[o]ne plaintiff claims pay for
time she spent blowing up balloons for the company, and another claims she should have been paid for time she spent
checking her sales numbers”); Reed v. Cty. of Orange, 266 F.R.D. 446, 454 n.7, 455 (C.D. Cal. 2010) (holding that
first factor weighed in favor of decertification because plaintiffs’ varying responsibilities and duties resulted in “claims

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The parties agree that the test for determining whether the Leased Drivers are employees
is the “economic realities” test, which employs a non-exhaustive list of six factors.177 These six
factors are: (1) the degree of control exerted by the alleged employer over the worker; (2) the
worker’s opportunity for profit or loss; (3) the worker’s investment in the business; (4) the
permanence of the working relationship; (5) the degree of skill required to perform the work; and
(6) the extent to which the work is an integral part of the alleged employer’s business.178 It also
“includes inquiries into whether the alleged employer has the power to hire and fire employees,
supervises and controls employee work schedules or conditions of employment, determines the
rate and method of payment, and maintains employment records.”179 “None of the factors alone
is dispositive; instead, the court must employ a totality-of-the-circumstances approach.”180
Additionally, “[t]he focal point in deciding whether an individual is an employee is whether the
individual is economically dependent on the business to which he renders service, or is, as a matter
of economic fact, in business for himself.”181
With the economic realities test in mind, the Court must assess whether the Leased Drivers
are similarly situated such that a collective action would be appropriate in this instance. However,
the Court’s task is not to consider the merits of whether the economic realities test is satisfied, but

[that] are simply too varied . . . . Plaintiffs’ ‘other’ claims vary from assignment to assignment and individual to
individual”).
177

Barlow v. C.R. England, Inc., 703 F.3d 497, 506 (10th Cir. 2012) (quoting Baker v. Flint Eng’g & Const.
Co., 137 F.3d 1436, 1440 (10th Cir. 1998)).
178

Baker, 137 F.3d at 1440.

179

Id.

180

Id.

181

Doty v. Elias, 733 F.2d 720, 722–23 (10th Cir. 1984) (citations omitted).

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rather to decide whether the factual and employment settings of the Leased Drivers are similar.
As demonstrated below, the Leased Drivers are not “similarly situated” because the “economic
realities” test necessitates a “totality of the circumstances” approach to determine whether it has
been satisfied. The relevant facts that must be considered under the “economic realities” test
widely vary between Leased Drivers, and thus, the “totality of the circumstances” is unique to each
Leased Driver. Accordingly, the Leased Drivers’ disparate factual and employment settings weigh
in favor of decertification.182
a.

Degree of control exerted by TransAm was unique to each Leased Driver

The first factor considers the nature and degree of the alleged employer’s control as to the
manner in which the work is to be performed. Stated another way, the finder of fact must determine
whether the Leased Drivers have the independence “which characterizes a person conducting their
own business.”183 For example, in a case from the Tenth Circuit, the employer exerted control
consistent with employee status where: the workers were told when to report to work, when to take
breaks, on what portion of the project they will be working, and when their workday ends; and the

182
This conclusion is typical in cases where it must be determined whether the putative plaintiffs are
employees or independent contractors. Courts typically deny collective certification in these cases, because the proof
necessary to determine whether the putative plaintiffs are employees or independent contractors cannot generally be
applied to the class as a whole. See, e.g., Pena v. Handy Wash, Inc., 2015 WL 11713032 (S.D. Fla. 2015); Collinge
v. IntelliQuick Delivery, Inc., 2015 WL 1292444 (D. Ariz. 2015); Rehberg v. Flowers Baking Co. of Jamestown, LLC,
2015 WL 1346125 (W.D.N.C. 2015); Carrera v. UPS Supply Chain Solutions, Inc., 2012 WL 12860750, at *8 (S.D.
Fla. 2012); Andel v. Patterson-UTI Drilling Co., 280 F.R.D. 287, 290 (S.D. Tex. 2012); Demauro v. The Limo, Inc.,
2011 WL 9191, at *3 (M.D. Fla. 2011).
183

Dole v. Snell, 875 F.2d 802, 808 (10th Cir. 1989). See also Khara Singer Mack, 133 Am. Jur. Trials § 13
(2017 update) (“The main claim in independent contractor vs. employee status litigation is that the employer controls
the work of independent contractors, and the contractor, in fact, loses his or her independence. Plaintiff’s counsel
must be able to show that the independent contractor is unable to contract with other employers, and the contractor is
entirely dependent on the employer with which he has a contract.”).

-39-

workers were prevented from offering services to third parties while working on a project for the
employer.184
Here, Plaintiffs are not “similarly situated” with respect to this factor.

Plaintiffs’

“economic control” survey and the Leased Drivers’ deposition testimony demonstrate that
TransAm exerted varying degrees of control over the Leased Drivers, and this factor cannot be
analyzed with collective evidence.
Plaintiffs identify certain facts in arguing that TransAm exerted sufficient control over the
Leased Drivers to weigh in favor of “employee” status. But the record shows that, while these
facts may be true for some Leased Drivers, these facts do not apply to many others. For example,
the evidence varies widely with respect to whether TransAm: (1) unilaterally dictated the terms of
the truck lease and independent contractor agreements (“ICAs”);185 (2) required Leased Drivers to
use a computer system with instructions regarding routes, fuel usage, and driving speeds;186 (3)
controlled Leased Drivers’ truck operating speeds;187 (4) controlled all load assignments;188 (5)

184

Baker, 137 F.3d at 1441.

185
Some Leased Drivers had significant bargaining power with respect to many of the contract terms. See,
e.g., Doc. 490-18, pp. 24-26; Doc. 490-13, pp. 29–31. But others testified that they were pressured into agreeing to
certain contract terms. See, e.g., Doc. 468-20, p. 15; Doc. 468-21, pp. 55, 93–96.
186
The only testimony Plaintiffs reference is the deposition of TransAm employee Rhonda McFarland. She
testified that the computer system, known as the Eaton Vorad system, was required at one time, but was “eventually
phased out . . . so there was a period of time when some trucks had them and some did not. Doc. 485-10, p. 35.
187

The evidence shows that Leased Drivers had the ability to change the speed setting on their truck’s
electronic control module. Doc. 490-45. One Leased Driver testified that his speed was capped at 70 mph until after
he purchased the truck, at which point he was able to drive faster than 70 mph. Doc. 485-11, pp. 104–06.
188

Although not asked in Plaintiffs’ survey, TransAm’s analysis of driving records suggests that 31.9%
rejected or declined a load during the time they drove for TransAm, while 68.1% did not. Doc. 452-4, p. 169.
Testimony indicates that TransAm disciplined some Leased Drivers for refusing loads (Doc. 452-2, p. 134), while
others were free to refuse loads and were never disciplined or retaliated against (Doc. 490-13, pp. 91–92).

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prohibited Leased Drivers from modifying their trucks;189 (6) placed restrictions on Leased
Drivers’ ability to hire employees/assistants;190 (7) controlled Leased Drivers’ access to funds in
their “maintenance Savings” accounts for truck maintenance;191 (8) and required Leased Drivers
to obtain approval from TransAm upon at least 8 days’ notice to take time off work.192
Although Plaintiffs’ survey shows Leased Drivers were “similarly situated” in some
respects,193 TransAm asserts that all 27 questions “are relevant and material” to the economic
control TransAm exerted.

Yet most of Plaintiffs’ survey questions received non-uniform

responses (less than 95% agreement).194

For example, 41% of respondent Leased Drivers

answered that TransAm monitored them in their trucks via camera, but 59% answered that they
were not monitored.195
Moreover, there are many pertinent “control” questions that Plaintiffs’ survey does not
account for, and deposition testimony shows that Leased Drivers are not “similarly situated” with

189

Of respondents, 84.1% were prohibited from modifying their trucks, while 15.9% felt they were free to
do so. Doc. 491-2, p. 6.
190
Of the 74 respondents who hired an employee, 73% felt that TransAm exercised control or required
approval over whom they could hire, while 27% felt that TransAm did not exercise such control or require its approval.
Doc. 491-2, p. 7.
191

Although not asked in Plaintiffs’ survey, TransAm’s analysis of driving records suggests that 73.2% of
Leased Drivers participated in the Maintenance Savings Account, while 26.8% did not. Doc. 452-4, p. 169.
192

In support of this proposition, Plaintiffs cite to the TransAm Owner Operator Handbook, which simply
states: “If you give us a minimum of eight-days’ notice, it will help us locate a load that will get you as close as
possible to your home.” Doc. 485-13, p. 12. One Leased Driver testified that “[his] understanding of it is that you
give an eight-day notice,” to take time off. But other Leased Drivers testified that they were free to take as much time
off as they desired whenever they wanted to. Doc. 490-16, p. 108. One Leased Driver would routinely take a vacation
for two-to-three months per year. Doc. 490-14, pp. 36–38.
193

There were ten questions that were answered the same by at least 95% of respondents.

194

17 questions received less than 95% agreement, and 7 questions received less than 80% agreement.

195

Doc. 491-2.

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respect to these facts, either. Some Leased Drivers testified that they could choose when and where
they would have maintenance performed on their trucks,196 while others testified that TransAm
dictated where maintenance had to be done.197 And Leased Drivers offered similarly conflicting
testimony over whether TransAm’s “fuel optimizer” and PrePass programs were optional, and
whether they could choose their own fuel locations.198
In this case, the factual similarities are far outweighed by the distinctions between the
Leased Drivers. Accordingly, TransAm exerted more control over some Leased Drivers than
others, making it impossible to analyze the “control” factor of the economic realities test for the
class with collective evidence.199
b.

Leased Drivers’ opportunity for profit and loss varied significantly

The second factor of the economic realities test considers the alleged employee’s
opportunity for profit or loss. As Plaintiffs note, there are a number of similarities concerning the
Leased Drivers’ opportunities for profit or loss: they were all paid under similar per-mileage pay

196

Doc. 452-28, p. 142; Doc. 452-29, p. 48.

197

Doc. 452-5, pp. 117–18.

198

Doc. 452-22, p. 14 (testifying that he was “basically forced” to buy TransAm’s “fuel optimizer” service);
Doc. 452-21, p. 57 (testifying that he made the decision himself not to purchase the “fuel optimizer” service); Doc.
452-31, p. 78 (testifying that he was not required to purchase TransAm’s PrePass program); Doc. 452-16, p. 51–52
(testifying that he paid for the PrePass program because it was not optional); Doc. 452-11, p. 51 (testifying that he
could go wherever he wanted to get fuel); Doc. 452-8, pp. 36–37 (testifying that she was not free to vary from
TransAm’s suggestions of where to get fuel without penalty).
199
Compare Doc. 452-24, pp. 58–59 (“TransAm controlled everything about my working for them. They
dispatched me. They told me where to fuel at. They told me what routes to take . . . . But TransAm was my boss and
employer. Independent contractor is a misnomer. Independent contractor means that I can go and pick my own loads,
drive for other people, hire my truck out. You know what I mean? Those things, we could not do.”); with Doc. 49016, pp. 90–91 (“Q: And so you brought your 2009 Peterbilt that you were lease-purchasing and continued to drive it
for TransAm Trucking, Inc., beginning on September 4th of 2013, correct? A: I beg to differ with your choice of
words. I’m not driving for TransAm. I’m driving for myself. I’m leased to TransAm.”), and 490-10, pp. 50–51
(testifying that he chose to become an independent contractor instead of a company driver because he wanted more
freedom).

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policies by TransAm; Leased Drivers could not negotiate the rate to haul a load;200 and Leased
Drivers were all responsible for their own maintenance costs. Thus, according to Plaintiffs, there
is no need to perform an individual analysis of this factor with respect to each individual Leased
Driver.
Despite these similarities, the disparities amongst the Leased Drivers are more significant.
Perhaps most notably, some Leased Drivers—including both of the Named Plaintiffs—hired one
or more employees to drive for them.201 The Leased Drivers who chose to hire employees had full
discretion to choose how much to pay their employees, and they were responsible for their
employees’ wages and tax withholdings. This would weigh in favor of “independent contractor”
status under the FLSA.202 Yet other Leased Drivers did not have employees and drove their trucks
themselves, which would weigh in favor of “employee” status. And there were also some Leased
Drivers that hired a “team driver” and split driving duties with their partner. This reflects widelyvarying opportunities for profit or loss amongst the Leased Drivers.
The flexibility afforded Leased Drivers in determining the number of hours that they work
is also relevant in determining whether an individual had opportunities for profit or loss.203 But
they reported varying degrees of flexibility. As mentioned above, some felt that they were entirely

200

One respondent to Plaintiffs’ “economic control” survey indicated that they were able to negotiate freight
rates with TransAm or its customers.
201

See, e.g., Doc. 452-36, pp. 177–79 (noting in her deposition testimony that it was her sole decision to hire
her son-in-law to be a team driver with her, and that she decided what to pay him, and it was her responsibility to
withhold social security and taxes).
202
See Barlow, 703 F.3d at 506 (“[W]e agree with the district court that Barlow was an independent
contractor. Barlow and his partner created a licensed, limited liability company in order to provide janitorial services.
Barlow kept records for the company, opened a separate bank account, and filed a corporate tax return. . . . This
suggests Barlow was in business for himself as a janitor.”) (internal citations omitted).
203

See Johnson v. Unified Gov’t of Wyandotte Cty., 371 F.3d 723, 730 (10th Cir. 2004).

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dependent on TransAm to assign them sufficient miles, they could not turn down a load without
repercussion, and they were restricted in their ability to take home time. Some Leased Drivers,
however, testified that they had significant freedom in choosing the loads they wished to accept,
they could turn down undesirable loads, and they could take time off whenever they wished.
Additionally, some Leased Drivers testified that they voluntarily agreed to drive over the holidays
in exchange for a cash incentive payment,204 while others indicated they did not receive the cash
incentive as promised.205
Furthermore, the Leased Drivers offered varying reports regarding the duties they
performed to receive compensation. Some simply drove for TransAm. At least one Leased Driver,
however, made visits to truck driving schools about once a month, for which he earned about
$35,000 from TransAm.206 But this opportunity was not available to everybody, as one Leased
Driver offered to make school visits but TransAm never took him up on the offer.207 Similarly,
some Leased Drivers earned extra pay by serving as a driver coach,208 while others said they
“absolutely” would not coach for privacy reasons.209

204

Doc. 452-24, p. 83 (testifying that he received a $1,000 bonus for making himself available to drive over
the Christmas holiday).
205
Doc. 452-37, p. 70 (“Well, if you’re—supposedly, if you’re available for dispatch over the Christmas
holidays, which I think are defined as from December 20th to January 6th, you get a thousand dollars extra. . . . But I
did not get that. I did not get that last year even though I was available for dispatch.”).
206

Doc. 490-37, pp. 46–47.

207

Doc. 452-16, pp. 94–95.

208

Doc. 452-9, p. 92 (noting that he earned four cents more per mile by coaching). According to TransAm,
14.47% of Leased Drivers drove as a coach during the time they drove for TransAm under an ICA. Doc. 452-4, p.
169.
209

Doc. 452-38, p. 48.

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Accordingly, the Leased Drivers are not “similarly situated” with respect to their
opportunities for profit or loss. It would be necessary to perform individual inquiries into each of
the Leased Drivers to determine whether their individual opportunities for profit or loss weighed
in favor of “employee” or “independent contractor” status.
c.

Leased Drivers reported varying levels of investments in the business

Although largely unaddressed by the parties, the third factor used to determine whether a
worker qualifies as an “employee” is the worker’s investment in the business. “The investment
‘which must be considered as a factor is the amount of large capital expenditures, such as risk
capital and capital investments, not negligible items, or labor itself.’ ”210

“This factor ‘is

interrelated to the profit and loss consideration.’ ”211 “In making a finding on this factor, it is
appropriate to compare the worker’s individual investment to the employer’s investment in the
overall operation.”212
Here, the Leased Drivers’ individual investments differed. The Leased Drivers either: (1)
leased a truck from TransAm Leasing without an option to purchase the truck; (2) leased a truck
from TransAm with the option to purchase; (3) leased multiple trucks and hired employees to drive
for them; or (4) purchased their own truck from a third party.213

210

Baker, 137 F.3d at 1442 (quoting Dole, 875 F.2d at 810).

211

Id. (quoting Sec’y of Labor v. Lauritzen, 835 F.2d 1529, 1537 (7th Cir. 1987)).

212

Id.

213

Again, the Court defined membership in the Collective Action to include those who were “classified by
Defendant as independent contractors and who leased trucks from TransAm Leasing, Inc. and performed driving
work.” Some Leased Drivers leased a truck from TransAm Leasing, thus qualifying for the class, but later in their
relationship with TransAm bought their own truck and continued driving for TransAm. See, e.g., Doc. 490-14, pp.
36–41, 89–91, 132–35.

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Because the Leased Drivers have all made differing levels of investments into their
businesses, it would not be possible to perform a uniform analysis on the entire class. Accordingly,
the Leased Drivers are not “similarly situated” with respect to their investments in the business.
d.

Permanence of the working relationship varied amongst Leased Drivers

“Independent contractors” generally “have fixed employment periods and transfer from
place to place as particular work is offered to them, whereas ‘employees’ usually work for only
one employer and such relationship is continuous and of indefinite duration.”214 Again, the
evidence relevant in applying this factor varies for each Leased Driver. Some drove for TransAm
for a year or less, while others drove for TransAm for many years.215 And Leased Drivers signed
ICAs for six-month, one-year, two-year, and even five-year terms.216 Just like the first three
factors, this factor cannot be analyzed without individualized evidence.
e.

Degree of skill required and extent to which the work is an integral part of
the employer’s business

Although the final two factors have largely been unaddressed by the parties, the Court notes
that these factors could likely be satisfied with representative evidence. The degree of skill
required to perform the duties seems to be uniform amongst the class. And it seems possible to
collectively determine whether or not the Leased Drivers’ work was an integral part of TransAm’s
business. Thus, the Leased Drivers are “similarly situated” with respect to these two factors.

214

Baker, 137 F.3d at 1442 (quoting Dole, 875 F.2d at 811).

215

See Doc. 490-51, p. 41.

216

See Doc. 490-14, p. 39; Doc. 490-51, p. 84.

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f.

The Leased Drivers are not “similarly situated”

Despite the disparities noted above, Plaintiffs contend that disparate work experiences are
not enough to decertify, and that there would need to be substantive disparities that would impact
the overall application of the economic realities test between the members of the collective action.
In particular, Plaintiffs argue that the following facts do not serve as a basis for decertification: (1)
some Leased Drivers hired employees;217 (2) the Leased Drivers were not uniformly punished for
declining load assignments, had varying degrees of freedom to take home time, and had varying
opportunities to work over the Christmas Holidays, make presentations at driving schools, and to
serve as driving coaches;218 (3) differences relating to fuel and work efficiency;219 (4) differences

217

See Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1321 (5th Cir. 1985). In Beliz, a worker
was found to be an employee of the farmer for whom he worked despite the fact that he hired, supervised, and paid a
crew of forty-five individuals to assist him with his work. While he increased his earnings by hiring those workers
and sharing in their piece-rate earnings, “this was not based on risk of loss of any capital investment or his
entrepreneurial skill but was simply a piece-rate override, measured by the difference between the total amount [the
putative employer] paid for each bin and the amount paid pickers for the buckets. Id. at 1328.
Contra Eberline v. Media Net, L.L.C., 636 F. App’x 225, 229 (5th Cir. 2016) (affirming conclusion under
“economic realities test” that worker was an “independent contractor” because the “installers could (1) control the
days and hours they worked; (2) perform custom work or additional services for customers to earn extra profits; and
(3) hire assistants to help with their installation assignments”); Freund v. Hi-Tech Satellite, Inc., 185 F. App’x 782,
783–84 (11th Cir. 2006) (upholding conclusion that worker was “independent contractor”; amongst other reasons,
employer exerted “very little control” over worker due in part to the fact that worker was free to establish his own
subcontracting corporation and hire his own employees).
218
See Hughes v. Family Life Care, Inc., 117 F. Supp. 3d 1365, 1372 (N.D. Fla. 2015) (explaining that in
circumstances where the worker’s “only freedom with respect to the jobs she undertakes is the freedom to limit those
she accepts” the “opportunity for profit or loss” factor weighs in favor of “employee” status).
219

See Molina v. S. Fla. Exp. Bankserv, Inc., 420 F. Supp. 2d 1276, 1286 (M.D. Fla. 2006) (noting that ability
to determine efficient methods of deliveries and to attempt to control fuel costs are de minimus in relation to the overall
cost of providing driving services, such that those choices did not weigh in favor of “independent contractor” status).

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between the length of leases and option to purchase terms;220 and (5) differences as to whether the
Leased Drivers bought insurance from TransAm or another source.221
It may be true that any one of these facts, by itself, would not serve as an independent basis
for decertification. However, these disparities—when viewed collectively—become substantive,
such that the Court would be required to “conduct an individualized analysis of each putative
plaintiff before it could be satisfied that each one fell under the auspices of the FLSA.”222 This is
true because the “economic realities” test requires a totality-of-the-circumstances approach, and
none of the factors are dispositive.223
But in this case, the totality-of-the-circumstances is unique to each individual Leased
Driver. Many Leased Drivers exhibited characteristics that weigh in favor of “employee status.”
For example, some Leased Drivers had no bargaining power; were provided equipment by
TransAm; were assigned loads by TransAm and were not free to turn any down; had their driving
speed limited by TransAm; could not take time off when they desired; were prohibited from
modifying their trucks; and were directed by TransAm when and where to get fuel, maintenance,
and repairs. But there were many other Leased Drivers that exhibited characteristics that weigh in
favor of “independent contractor” status. Some Leased Drivers hired their own employees;
purchased their own truck(s); were free to turn down loads or find more preferable routes; were

220

See Hughes, 117 F. Supp. 3d at 1373 (concluding that contract that automatically renews monthly can
provide sufficient permanency for employee status under the FLSA).
221

See Flores v. Velocity Express, LLC, 250 F. Supp. 3d 468, 484 (N.D. Cal. 2017) (concluding that employer
“could and did exercise significant control” over drivers for a number of reasons, including that the employer required
the drivers to enroll in its insurance program or to obtain insurance that complied with the employer’s requirements).
222

See Andel, 280 F.R.D. at 290.

223

See Baker, 137 F.3d at 1440.

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not speed-restricted; took a vacation whenever they wanted, for as long as they desired; modified
their trucks and placed advertising outside; and were not restricted in where they could get fuel,
maintenance, or repairs. Thus, it cannot be said categorically that every Leased Driver falls (or
does not fall) under the auspices of the FLSA. Nor can it be said categorically that all Leased
Drivers are “economically dependent” on TransAm or that each Leased Driver is “in business for
himself.”224
Essentially, Plaintiffs are arguing that there are no substantive differences between the
Leased Drivers, therefore the Leased Drivers are “similarly situated” as a matter of law. But their
argument is belied by the very nature of the fact-specific, totality-of-the-circumstances approach
that is required by the “economic realities” test. “[I]t is not what the [workers] could have done
that counts, but as a matter of economic reality what they actually do that is dispositive.”225 And
here, the Leased Drivers’ experiences—what they actually did—varied greatly which would
require individual analyses. Accordingly, the Leased Drivers are not “similarly situated” with
respect to their employment and factual settings.
2.

Various defenses available to TransAm supports decertifying the class

In deciding whether to decertify a collective action, the Court must next consider whether
an employer’s defense(s) can be addressed on a class-wide basis.226 Courts have granted motions
for decertification based on this factor because individualized defenses inhibit the efficiency of

224

Doty, 733 F.2d at 722–23 (citations omitted).

225

See Dole, 875 F.2d at 808 (emphases and alterations in original).

226

See Thiessen, 267 F.3d at 1107; Montoya v. Rescue Indus., Inc., 1999 WL 240247, at *2 (10th Cir. 1999)
(citing Bayles v. Am. Med. Response of Colo., Inc., 950 F. Supp. 1053, 1067 (D. Colo. 1996) (decertifying collective
action because, among other reasons, employer’s defense could not be addressed on a class-wide basis)).

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proceedings on a collective basis.227 Indeed, this Court previously held that this factor warranted
decertification when “Defendants’ defenses as to each Plaintiff [were] . . . highly individualized”
such that Defendants would “be required to call hundreds of Plaintiffs to testify as to their
claims . . . .”228 “Nevertheless, it is within the Court’s discretion as to ‘whether the potential
defenses would make the class unmanageable.’ ”229
TransAm argues that there are three defenses that cannot be addressed on a class-wide
basis: liability, damages, and statute of limitations.
a.

Liability

TransAm anticipates arguing that some, if not all, of the Leased Drivers were properly
classified as “independent contractors” and therefore exempt from the FLSA’s minimum wage
provisions. As discussed in detail above, whether an individual was in fact an “employee” or an
“independent contractor” is determined by applying all six factors of the “economic realities” test.
Two of these factors can be analyzed collectively: degree of skill required to perform the work,
and extent to which the work is an integral part of the employer’s business. However, Plaintiffs’
appear to give these factors the least weight. In arguing for summary judgment on the Leased
Drivers’ status as “employees” under the FLSA, Plaintiffs devote much of their argument to the
first four factors.230 And Plaintiffs are not “similarly situated” with respect to these four factors.

227
Green, 888 F. Supp. 2d at 1103 (citing Aquilino v. Home Depot U.S.A., Inc., 2011 WL 564039, at *9
(D.N.J. 2011)).
228

Scott v. Raudin McCormick, Inc., 2010 WL 5093650, at *4 (D. Kan. 2010).

229

Green, 888 F. Supp. 2d at 1103 (quoting Zavala v. Wal-Mart Stores, Inc., 2010 WL 2652510, at *10
(D.N.J. 2010)).
230

See Doc. 468, pp. 24–40.

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TransAm’s liability is therefore premised on a test of which four of the six factors cannot
be analyzed with collective evidence. To argue that some (or all) of the Leased Drivers were not
“employees” under the FLSA, TransAm would be required to introduce individualized evidence.
This would cause the proceedings to “devolve into numerous mini-trials, causing the jury to
evaluate testimony from countless witnesses and other evidence that is unique to particular
Plaintiffs, and thus incompatible with collective actions.”231 “Available defenses and procedural
fairness go hand-in-hand, as the efficiency gained by holding one trial as opposed to many cannot
be obtained at the expense of a defendant’s due process rights.”232
Thus, TransAm’s inability to offer its liability defense on a class-wide basis weighs in favor
of decertification.
b.

Damages

Additionally, TransAm argues that the FLSA collective action should be decertified
because, even if the Court determines the Leased Drivers were “employees” under the FLSA,
damages must be determined week-by-week and driver-by-driver. Plaintiffs counter that because
TransAm treated Plaintiffs as independent contractors, TransAm made no effort to track Plaintiffs’
weekly hours worked or to compare their earnings with the FLSA’s minimum wage obligations.
Accordingly, Plaintiffs cite Tyson Foods, Inc. v. Bouaphakeo233 to argue that they do not need to
prove each individual’s weekly minimum wage damages, but can rely on “just and reasonable
inference” through “representative evidence” as to damages.

231

Green, 888 F. Supp. 2d at 1104 (internal quotations omitted).

232

Scott v. Chipotle Mexican Grill, Inc., 2017 WL 1287512, at *9 (S.D.N.Y. 2017) (quotation omitted).

233

136 S. Ct. 1036, 1046–47 (2016).

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“[W]hen employers violate their statutory duty to keep proper records, and employees
thereby have no way to establish the time spent doing uncompensated work, the ‘remedial nature
of [the FLSA] and the great public policy which it embodies . . . militate against making’ the
burden of proving uncompensated work ‘an impossible hurdle for the employee.’ ”234 Thus, if the
Leased Drivers could establish that they were “employees,” and TransAm had a statutory
obligation to pay them minimum wages, the Leased Drivers would be able to provide
representative evidence as to damages.
However, Plaintiffs have completely ignored the fact that TransAm is still entitled to
defend against each claim individually.235 This case involves claims for minimum wage damages
over a span of multiple years by nearly 2,000 Leased Drivers. TransAm would have to offer
“week-by-week, driver-by-driver” evidence to argue that, with respect to many of these claims,
their records show that during specific weeks the individual Leased Driver received the statutory
minimum wage.236 This defense cannot be offered on a class-wide basis, and therefore weighs in
favor of decertification.

234

Id. at 1047 (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)).

235

Cf. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 367 (2011) (holding that a Rule 23 class cannot be
certified on the premise that defendant would be denied the opportunity to litigate its statutory defenses to individual
claims).
236

During the class period, Leased Drivers were paid via a weekly settlement statement. Plaintiffs’ damages
expert used the miles and net pay on each settlement statement as part of his damages calculation. However, this does
not account for Leased Drivers who received cash advances some weeks, or for Leased Drivers who turned in their
trip paperwork late. TransAm explains that, if a Leased Driver received a $500 cash advance one week, the money
would be deducted from the next week’s settlement statement. Thus, the gross pay from the second week’s settlement
statement may be less than the minimum wage, and therefore included in Plaintiffs’ damages calculation. In these
instances, TransAm would need to introduce evidence of the first week’s cash advance to defend against unwarranted
damages. See Chen v. Cayman Arts, Inc., 757 F. Supp. 2d 1294, 1301 (S.D. Fla. 2010).

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c.

Statute of Limitations

The Leased Drivers’ FLSA claim is generally subject to a two-year statute of limitations.237
If they establish that TransAm acted willfully, the Court can extend the limitations period to three
years.238 Opt-in plaintiffs commence their action on the date they file their opt-in consent. This
means that the “statute of limitations period continues to run with respect to each potential
plaintiff’s [claims] until that plaintiff files the written consent form.”239
TransAm argues that Plaintiffs’ expert, in calculating damages, failed to appropriately
account for the applicable statute of limitations and tolling. According to TransAm, “many
members of the class do not have viable claims against TransAm for specific weeks and an indepth individual analysis will be required to determine which claims are viable.” “A plaintiff-byplaintiff, week-by-week analysis is required to first determine whether Plaintiffs’ claims are onface timely or untimely, and to apply the appropriate amount of tolling to each of Plaintiffs’
untimely claims in order to determine whether Plaintiff is entitled to recovery.”
Plaintiffs counter that these “issues require nothing more than a mathematical calculation
of the number of weeks for which members of the Collective Action worked during the relevant
limitations period, and assessing each member’s weekly minimum wage damages without those
weeks.” “In sum, calculating weekly damages for each member of the Collective Action will
require no more than a mathematical exercise of counting backwards in a uniform number of weeks

237

29 U.S.C. § 255(a).

238

Id.

239

Lee v. ABC Carpet & Home, 236 F.R.D. 193, 199 (S.D.N.Y. 2006).

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from the filing of each Collective Action member’s consent to join, then tallying the weekly
damages therein for each of them.”
It certainly is possible to resolve statute of limitation issues using “nothing more than a
mathematical calculation.” However, as Plaintiffs have themselves suggested, this mathematical
exercise must be applied individually for each Leased Driver based on the date that they filed their
consent to join. And, as one would expect, the 1,928 Leased Drivers did not file their consents on
the same date.240 This also weighs in favor of decertification.
3.

Fairness and Procedural Considerations

“Fairness and procedural considerations are important when addressing whether Plaintiffs
are similarly situated.”241 “The primary objectives of a § 216(b) collective action are: (1) to lower
costs to the plaintiffs through the pooling of resources; and (2) to limit the controversy to one
proceeding which efficiently resolves common issues of law and fact that arose from the same
alleged activity.”242
In Green, Judge Robinson wrote:
[Defendant] claims that because the facts are so individualized, it would be
impossible to proceed with this action using representative testimony. As
discussed, [Defendant] contends that hundreds of witnesses would be required to
testify, “which will devolve into numerous mini-trials, causing the jury to evaluate
testimony from countless witnesses and other evidence that is unique to particular
Plaintiffs,” and thus incompatible with collective actions. The Court agrees. Given
the Court’s determination that Plaintiffs are not similarly situated with respect to
key issues in the exemption analysis, the pursuit of individualized actions is a
necessary result. Moreover, proceeding as a class would not be efficient, as it
would likely result in two trials, one to establish liability and a second to determine
damages. While decertification places opt-in Plaintiffs at “square one,” they are
240

Consents were filed sporadically between October 19, 2015 and July 11, 2016.

241

Green, 888 F. Supp. 2d at 1104 (citing Thiessen, 267 F.3d at 1103).

242

Id. (quoting Raudin McCormick, 2010 WL 5093650, at *4 (D. Kan. 2010)).

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not overly prejudiced because many have likely benefitted from the implementation
of class-wide discovery on many of the issues relevant to their FLSA claims. Thus,
the Court concludes this factor militates against maintaining class certification.243
Judge Robinson’s analysis is pertinent here. While proceeding as a collective action would lower
costs to plaintiffs through the pooling of resources, there are very few issues of law and fact that
arose from the same alleged activity. Almost every aspect of this case would require individual
evidence pertaining to each of the 1,928 Leased Drivers. Such “individualized analysis would
contravene a primary purpose behind class action lawsuits, i.e., the promotion of judicial
economy.”244
Additionally, the fairness factor necessitates decertification. While there are many Leased
Drivers who have exhibited characteristics of an “independent contractor,” TransAm cannot
possibly present individualized evidence to allow the jury to correctly determine which Leased
Drivers were covered by the FLSA and which were not. It would be a miscarriage of justice for
TransAm to pay minimum wage damages to a subset of Leased Drivers who are not actually owed
any minimum wage damages. Likewise, it would be improper for Leased Drivers who were not
owed a minimum wage to receive such damages.245
Accordingly, all three factors weigh in favor of decertification.

243

Id.

244

Andel, 280 F.R.D. at 290.

245

See Rindfleisch v. Gentiva Health Servs., Inc., 22 F. Supp. 3d 1295, 1304 (N.D. Ga. 2014) (concluding
that the “fairness factor” necessitates decertification because the evidence indicated that a sub-set of Plaintiffs were
not owed any damages).

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4.

Conclusion

In determining whether the Leased Drivers are “similarly situated” at the decertification
stage, the Court must analyze three factors under a relatively strict standard: “(1) disparate factual
and employment settings of the individual plaintiffs; (2) the various defenses available to
defendant which appear to be individual to each plaintiff; [and] (3) fairness and procedural
considerations.”246 Here, all three factors suggest that the Leased Drivers are not “similarly
situated.” As this Court previously held in a similar case:
In light of the individualized and fact-intensive inquiry that will be required as
discussed above, the Court concludes that decertifying the . . . class is required. As
discussed, this case is fraught with questions requiring distinct proof as to
individual plaintiffs . . . . In addition, Defendants’ defenses relating to each
individual Plaintiff’s claim . . . cannot be addressed on a class-wide basis. Although
the FLSA does not require potential class members to hold identical positions, the
similarities necessary to maintain a collective action under § 216(b) must extend
beyond the mere fact that Plaintiffs hold the same job title. Otherwise, it is doubtful
that § 216(b) would further the interests of judicial economy, and it would
undoubtedly present a ready opportunity for abuse.247
Therefore, based on the foregoing, Plaintiffs’ conditionally certified class is hereby decertified,
and the opt-in Plaintiffs will be dismissed by operation of this Order.
III.

Motion to Decertify the Rule 23 Class (Doc. 446)

On August 20, 2015, the Court certified the Rule 23 class, finding that the Rule 23 Plaintiffs
had satisfied the four elements of Rule 23(a) and the requirements of Rule 23(b)(3).248 The Rule
23 class currently consists of approximately 8,691 Plaintiffs who assert two KWPA claims.249 The

246

See Thiessen, 267 F.3d at 1103.

247

Raudin McCormick, 2010 WL 5093650, at *5 (quotation omitted).

248

Doc. 146, p. 17; Blair, 2015 WL 5006076, at *8.

249

The opt-in Plaintiffs to the FLSA collective action are also members of the Rule 23 class.

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first KWPA claim asserts that TransAm failed to pay them wages in the amount of at least the
applicable federal minimum wage for all hours worked during numerous weekly pay periods, and
that such unpaid minimum wages constituted “wages due” under the KWPA. And the second
claim asserts that TransAm improperly deducted banking fees from the Plaintiffs’ wages and
thereby failed to pay the Plaintiffs all “wages due” in violation of the KWPA.

As only

“employees” are covered under the KWPA, both claims are premised on TransAm having
misclassified the Rule 23 Plaintiffs as “independent contractors,” when they in fact qualified as
“employees” entitled to the KWPA’s protections. TransAm now argues that the Rule 23 class
action should be decertified for the same reasons as the FLSA collective action, and that the
“improper deductions” claim would also require individualized determinations, such that Plaintiffs
can no longer satisfy their burden under Rule 23.
The Court has discretion under Rule 23(c)(1)(C) to amend an order that previously granted
class certification.250 “[T]he defendant must logically provide some reason for the court to change
its conclusion.”251 “Yet, it remains the plaintiff’s burden to prove that the requirements of Rule
23 are met.”252 Here, TransAm argues that extensive discovery has been conducted since the
original certification order, and the evidence shows that Plaintiffs no longer meet their burden

250

See DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1201 (10th Cir. 2010).

251

Schell v. OXY USA Inc., 2013 WL 4857686, at *3 (D. Kan. 2013).

252

Arkalon Grazing Ass’n v. Chesapeake Operating, Inc., 2014 WL 3089556, at *1 (D. Kan. 2014).

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under Rule 23(b)(3).253 The Court agrees that consideration of TransAm’s motion to decertify is
proper here.254
Rule 23(b)(3) requires 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.” The
requirements of Rule 23(b)(3) ensure that a class is sufficiently cohesive to warrant adjudication
by representation.255 The predominance question asks whether common issues are more prevalent
or important than individual issues.256 “[P]redominance may be destroyed if individualized issues
will overwhelm those questions common to the class.”257
Here, the Rule 23 class must be decertified for two reasons. First, Plaintiffs’ KWPA claim
for unpaid minimum wages has been dismissed. This claim represented approximately 98% of the
damages sought by the Rule 23 class.258 And, although not addressed by the parties, it is not clear
whether the Court would even retain jurisdiction over the remaining KWPA claim for improper

253

TransAm points out that, since the certification order, the issuance of a discovery questionnaire was sent
out to thousands of Plaintiffs, more than 50 class members were deposed, and both parties have submitted expert
reports.
254

Cf. Schell, 2013 WL 4857686, at *3 (noting that Court would not grant motion to decertify where the
defendant failed to show that facts or law had materially changed or developed).
255

Amchem Prods. v. Windsor, 521 U.S. 591, 622–23 (1997).

256

CGC Holding Co v. Broad & Cassel, 773 F.3d 1076, 1087 (10th Cir. 2014).

257

Roderick Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213, 1220 (10th Cir. 2013).

258

Plaintiffs’ damages expert, Dr. Jeremy Albright, recently calculated that the Rule 23 Plaintiffs were owed
more than $51 million for unpaid minimum wages, but only $634,882 for improper deductions. Doc. 433, p. 18; Doc.
459-2, p. 7.

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deductions.259 Additionally, the recently-produced evidence shows that the Rule 23 class should
not have been certified in the first place.260
Second, the evidence shows that common questions of law or fact no longer predominate
with respect to the remaining KWPA claim for improper deductions either. In support of this
claim, Plaintiffs allege that TransAm violated the KWPA by making improper deductions from
their wages. Particularly, TransAm issued banking cards, and TransAm “has had a policy and
practice of providing compensation to its Leased Drivers” via those bank cards, and charged
Plaintiffs a transaction fee each time money was transferred or withdrawn from such cards.261

259

By dismissing TransAm’s KWPA claim for unpaid minimum wages, jurisdictional issues would be raised
if the Rule 23 class were allowed to proceed with their KWPA claim for improper deductions. Plaintiffs’ claim that
the Court has original jurisdiction over the KWPA claims under the Class Action Fairness Act (“CAFA”), 28 U.S.C.
§ 1332(d), and supplemental jurisdiction under 28 U.S.C. § 1367. Under CAFA, district courts have original
jurisdiction of “any civil action in which the matter in controversy exceeds the sum or value of $5,000,000,” among
other requirements. However, Plaintiffs are only claiming $634,882 for improper deductions, raising the issue of
whether the Court would have continuing CAFA jurisdiction. This also raises the issue of whether the Court would
have supplemental jurisdiction over a state claim brought by 8,691 Plaintiffs for $634,882 when all except the two
Named Plaintiffs have been dismissed from the original claim granting federal question jurisdiction. That said, the
parties have not argued this issue, and this Order is decertifying the Rule 23 class, so the jurisdictional issues do not
need to be addressed.
260

The KWPA unpaid minimum wages claim is entirely duplicative of the FLSA claim, and the recentlyproduced evidence shows that the class should not have been certified under Rule 23(b)(3) for the same reasons that
opt-in Plaintiffs are not “similarly situated” to proceed as a collective action. The opt-in Plaintiffs in the decertified
collective action are also Rule 23 class members. Both classes were seeking damages for the same FLSA minimum
wage violations. Proving these violations would require an individualized, case-by-case assessment, and class
certification should not have been granted. See, e.g., Harris v. Express Courier Int’l, Inc., 2017 WL 5606751, at *4–
8 (W.D. Ark. 2017) (decertifying FLSA collective action and denying motion to certify Rule 23 class action when the
FLSA and the state wage law claim “afford class members essentially the same relief” and neither a collective action
nor a class action would “provide an efficient and cost-effective mechanism to resolve the liability questions in this
case” because both required individualized inquiries into whether the putative plaintiffs were protected under the
FLSA); Hernandez v. Fresh Diet, Inc., 2014 WL 5039431 (S.D.N.Y. 2014) (granting motion to decertify FLSA
collective action and denying motion to certify state claims as a Rule 23 class action when Plaintiffs’ testimony varied
“significantly with respect to the degree of control relevant to determining their alleged status as employees” and
therefore “common questions do not predominate over individual questions as required under Rule 23(b)(3), largely
for the reasons” the Court stated in decertifying the FLSA collective action) (internal brackets omitted). See also
Culpepper v. Irwin Mortg. Corp., 491 F.3d 1260, 1276 (11th Cir. 2007) (concluding that district court did not abuse
its discretion in decertifying a class because the “action should not have been certified as a class action in the first
place . . . .”).
261

Doc. 433, p. 11.

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Plaintiffs concede that 62.27% of the class members received their pay by direct deposit to
their personal bank account.262 These Leased Drivers did not accumulate any transaction fees
because “they did not have their pay put on a prepaid card at all.”263 Thus, contrary to Plaintiffs’
claims, there is not a common class-wide policy or practice of imposing improper deductions.
Furthermore, amongst the Plaintiffs that were issued banking cards, individualized issues
overwhelm those questions common to the class. During the class period, Plaintiffs utilized
banking cards from any of three different companies—Comdata, TCH, and EFS.264

The

transaction fees at issue were for various amounts of $1.00 and less. In addition, Plaintiffs signed
an authorization for transaction fees associated with cash and fuel advances. TransAm anticipates
arguing that these deductions were lawful under K.S.A. § 44-319(a)(3), because the transaction
fees were only assessed when the drivers voluntarily requested a benefit, such as an advance on
money that had not yet been earned.265 In doing so, an individual inquiry must be made as to
whether the class members who were assessed transaction fees expressly authorized the fees, and
then whether each individual fee was to the employee’s benefit. Thus, there is “no common
proof . . . possible to demonstrate injury for all class members, because to determine whether or
not a charge was authorized will require individualized proof.”266

262

See Doc. 451, p. 5; Doc. 451-6, p. 5; Doc. 488, p. 4.

263

Doc. 451, p. 6.

264

Doc. 450-3, p. 2.

265

See K.S.A. § 44-319(a)(3) (“[N]o employer may withhold, deduct or divert any portion of an employee’s
wages unless: . . . the employer has a signed authorization by the employee for deductions for a lawful purpose
accruing to the benefit of the employee . . . .”).
266

Cf. Midland Pizza, LLC v. Sw. Bell Tel. Co., 277 F.R.D. 637, 642 (D. Kan. 2011).

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Accordingly, the class is not sufficiently cohesive to warrant adjudication by representation
on either KWPA claim. TransAm’s motion to decertify the Rule 23 class is therefore granted. 267
IV.

Motions for Summary Judgment

Summary judgment is proper if the moving party demonstrates that there is no genuine
issue as to any material fact, and the movant is entitled to judgment as a matter of law.268 A fact
is “material” when it is essential to the claim, and issues of fact are “genuine” if the proffered
evidence permits a reasonable jury to decide the issue in either party’s favor.269 The movant bears
the initial burden of proof and must show the lack of evidence on an essential element of the
claim.270 If the movant carries its initial burden, the nonmovant may not simply rest on its
pleading, but must instead “set forth specific facts” that would be admissible in evidence in the
event of trial from which a rational trier of fact could find for the nonmovant.271 These facts must
be clearly identified through affidavits, deposition transcripts, or incorporated exhibits—
conclusory allegations alone cannot survive a motion for summary judgment.272 The Court views
all evidence and reasonable inferences in the light most favorable to the non-moving party.273

267

See XTO Energy, Inc., 725 F.3d at 1220 (citing Sacred Heart Health Sys., Inc. v. Humana Military
Healthcare Servs., Inc., 601 F.3d 1159, 1170 (11th Cir. 2007) (“A plaintiff may claim that every putative class member
was harmed by the defendant’s conduct, but if fewer than all of the class members enjoyed the legal right that the
defendant allegedly infringed, or if the defendant has non-frivolous defenses to liability that are unique to individual
class members, any common questions may well be submerged by individual ones”)).
268

Fed. R. Civ. P. 56(a).

269

Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006).

270

Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citation omitted).

271

Id. (citing Fed. R. Civ. P. 56(e)).

272

Mitchell v. City of Moore, Ok., 218 F.3d 1190, 1197 (10th Cir. 2000) (citation omitted).

273

LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).

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A.

Plaintiffs’ Motion for Partial Summary Judgment
Plaintiffs argue in their Motion for Partial Summary Judgment (Doc. 443) that the Plaintiffs

in the opt-in collective action were “employees” of TransAm pursuant to the application of the
“economic realities” test under the FLSA, and that Plaintiffs in the Rule 23 class action were
“employees” under the “right to control” test for employee status under the KWPA.
1.

The remaining Named Plaintiffs are not entitled to summary judgment on
“employee” status under the FLSA “economic realities” test

In arguing that members of the FLSA collective action were “employees” under the FLSA,
Plaintiffs relied heavily on deposition testimony of opt-in Plaintiffs that are being dismissed from
the case by this Order. The Court’s decertification determination drastically changes the landscape
of this case, by reducing it from nearly 2,000 opt-in Plaintiffs down to just the two Named
Plaintiffs. Of Plaintiffs’ 81 statements of fact in support of their motion, 13 facts pertain to Named
Plaintiff Blair, and only seven of the facts pertain to Named Plaintiff Davis.
Viewing the evidence in the light most favorable to TransAm, there are only four
uncontroverted facts between the two Named Plaintiffs. First, Plaintiff Blair was a Leased Driver
from March 2007 to February 2008.

Second, Plaintiff Davis was a Leased Driver from

approximately December 2005 until May 2010. Third, Plaintiff Blair testified that the status of a
truck as either leased to a Leased Driver or driven by an employee driver of TransAm switches
back and forth; TransAm can simply make a software change to convert a given truck from a
leased truck to a truck driven by an employee, or vice versa. And fourth, Plaintiff Blair also
testified that a driver any Plaintiff wished to hire must go through the full driver training by
TransAm, and TransAm reserves and exercises the right to say whom Plaintiffs may have driving
under the ICA, and TransAm can terminate such drivers.

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The “economic realities” test is a comprehensive six-factor test used to determine whether
a worker was “economically dependent on the business to which he renders service, or is, as a
matter of economic fact, in business for himself.”274 “None of the factors alone is dispositive;
instead, the court must employ a totality-of-the-circumstances approach.”275 Because there are
entirely insufficient facts pertaining the Named Plaintiffs’ economic dependence on TransAm,
they are not entitled to judgment on their “employee” status under the FLSA as a matter of law.
2.

The remaining Named Plaintiffs are not entitled to summary judgment on
“employee” status under the KWPA “right to control” test

The “right to control” test is a 20-factor test used to determine whether a worker is an
“employee” or an “independent contractor.” The 20-factor test considers:
(1) the employer’s right to require compliance with instructions (economic
reality test’s degree of control factor);
(2) the extent of any training provided by the employer;
(3) the degree of integration of the worker’s services into the business of
the employer (economic reality test’s integral part of employer’s business factor);
(4) the requirement that the services be provided personally by the worker;
(5) the extent to which the worker hires, supervises, and pays assistants;
(6) the existence of a continuing relationship between the worker and the
employer (economic reality test’s permanence of the working relationship factor);
(7) the employer’s establishment of set work hours;
(8) the requirement that the worker devote full-time to the employer’s
business;
(9) the degree to which the work is performed on the employer’s premises;
(10) the degree to which the employer sets the order and sequence of work;
(11) the requirement that the worker submit regular or written reports to the
employer;
(12) the manner of payment to the worker, e.g., by the hour, day, or job;
(13) the extent to which the employer pays the worker’s business or travel
expenses;
(14) the degree to which the employer furnishes tools, equipment, and
material (economic reality test’s investment in business factor);

274

Doty, 733 F.2d at 722–23 (citations omitted).

275

Baker, 137 F.3d at 1441.

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(15) the incurrence of significant investment by the worker (economic
reality test’s investment in business factor);
(16) the ability of the worker to make a profit or suffer a loss (economic
reality test’s opportunity for profit or loss factor);
(17) whether the worker can work for more than one firm at a time;
(18) whether the worker makes his or her services available to the general
public on a regular and consistent basis;
(19) whether the employer has the right to discharge the worker; and
(20) whether the worker has the right to terminate the relationship at any
time without incurring liability.276
“This test includes economic reality considerations, while maintaining the primary focus on an
employer’s right to control.”277
Here, there are insufficient facts for the Court to apply numerous factors. There are no
uncontroverted facts pertaining to: (1) the degree of control TransAm exerted over Named
Plaintiffs; (8) whether they were required to work full time; (16) their ability to make a profit or
suffer a loss; (17) whether they could work for more than one firm at a time; or (18) whether they
made their services available to the public.
Plaintiffs concede that factors 4, 5, 10, 12, 13, 14, and 15 would weigh at least slightly in
favor of “independent contractor” status, and that factors 7 and 9 are neutral.278 Of the remaining

276

Craig, 335 P.3d at 76.

277

Id.

278

With respect to factor 14, Plaintiffs point to Craig, where the Kansas Supreme Court ultimately determined
that FedEx drivers were “employees” under the “right to control” test. When analyzing factor 14, the Court noted that
“one expects an independent contractor to possess the tools, equipment, and materials necessary to fulfill its
obligations under the contract.” Id. at 89. After noting that FedEx did require the drivers to possess their own tools,
thus weighing in favor of independent contractor status, the Court discounted this factor because FedEx “injected its
control” on this subject by providing mechanisms for drivers to obtain the items from FedEx, and to pay for them
through payroll deductions. The Craig Court thus held that the factor “superficially supports an independent
contractor relationship, albeit the context must be considered in reviewing the totality of the circumstances.” Id. at
90.
While this Court agrees that TransAm provided a mechanism for drivers to obtain the trucks Plaintiffs
drove, it is not clear in reading Craig whether factor 14 actually weighed in favor of “employee” status, in favor of
“independent contractor” status, or if it was neutral. Regardless, in this case, there are insufficient facts for the Court

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factors, the Court concludes that several factors weigh at least slightly in favor of “employee”
status: (2) TransAm provided training to the Named Plaintiffs; (3) their work was integral to
TransAm’s business; (6) they entered into ICAs with one-year renewal provisions; (11) they were
required to submit documentation to be paid for each delivery; (19) TransAm retained the right to
terminate Plaintiffs upon 14 days’ notice; and (20) Plaintiffs also had the right to terminate the
ICA upon 14 days’ notice.
Although six factors weigh in favor of an employee-employer relationship, the Court
cannot apply five factors, two are neutral, and seven weigh in favor of an independent contractor
relationship. Viewing the evidence and reasonable inferences in the light most favorable to
TransAm, Plaintiffs are not entitled to judgment as a matter of law regarding “employee” status
under the KWPA.279 Accordingly, Plaintiffs’ motion for partial summary judgment is denied.
B.

TransAm’s Motion for Summary Judgment
In its motion, TransAm argues that (1) Plaintiffs’ KWPA claim for FLSA minimum wages

is preempted; (2) TransAm is entitled to summary judgment on Plaintiffs’ claim under
K.S.A. § 44-314(d); (3) TransAm is entitled to summary judgment on Plaintiffs’ claim for
“improper deductions” under the KWPA because Plaintiffs authorized the charges that they claim
were improperly deducted from their wages; (4) certain Plaintiffs should be precluded from
arguing they were misclassified because those Plaintiffs previously took the opposite position in a
separate lawsuit against TransAm in the District of Kansas; (5) Plaintiffs were properly classified
as “independent contractors” under the KWPA; (6) the Court should enter summary judgment

to consider this factor in context by “reviewing the totality of the circumstances.” Viewing the evidence in the light
most favorable to TransAm, this Court finds that factor 14 weighs in favor of “independent contractor” status.
279

See LifeWise Master Funding, 374 F.3d at 927.

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precluding Plaintiffs from recovering a third year of minimum wage or liquidated damages; and
(7) Plaintiffs have no evidence of damages for their FLSA damages claim.
First, TransAm’s argument that Plaintiffs’ KWPA claim for FLSA minimum wages is
preempted is now moot, because the Court is granting TransAm’s motion for judgment on the
pleadings, which raised the same argument.
Second, TransAm’s motion is denied with respect to summary judgment on Plaintiffs’
claim under K.S.A. § 44-314(d). TransAm’s argument focuses on Plaintiffs’ damages report,
which estimated damages for the entire Rule 23 Class. That report does not contain specific
information relating to the two remaining Named Plaintiffs, so TransAm has provided no evidence
suggesting that it is entitled to judgment as a matter of law.
Third, TransAm’s motion is denied with respect to the KWPA “improper deductions”
claim. TransAm points to the ICA, which states: “[Plaintiff] specifically authorizes [TransAm] to
make deductions for the following items: (a) any and all Comdata and/or TCH card charges and
transaction fees attributable to [Plaintiff].280 The KWPA provides that an employer may not deduct
from an employee’s wages unless “the employer has a signed authorization by the employee for
deductions for a lawful purpose accruing to the benefit of the employee . . . .”281 However, an
individual inquiry must be made to determine whether the deductions actually accrued “to the
benefit of the employee.” TransAm is not entitled to judgment as a matter of law simply because
Plaintiffs provided TransAm a signed authorization for the deductions.

280

Doc. 451-7 pp. 8–9, 11.

281

K.S.A. § 44-319(a)(3).

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Fourth, TransAm’s motion is denied with respect to TransAm’s argument that certain Rule
23 Plaintiffs in this case should be precluded from arguing that they are “employees” under the
FLSA and KWPA. In this section of its motion, TransAm claims that approximately 6,500 Rule
23 class members were also class members in another class action against TransAm in Fox v.
TransAm Trucking, Inc.282 And, according to TransAm, the Fox Plaintiffs alleged that they were
“independent contractors under a statute only applicable to independent contractors.” Invoking
the doctrines of judicial, collateral, and equitable estoppel, TransAm argues that the overlapping
plaintiffs should not be able to argue the opposite here.
In Fox, the plaintiffs alleged violations of the federal Truth-in-Leasing regulatory scheme
(“TIL”) due to TransAm and TransAm Leasing, Inc. charging unlawful satellite communication
usage fees. Although the Fox plaintiffs adopted the label of “independent contractors,” the court
certified the class to include “[a]ll persons, including entities, who operated under an “Independent
Contractor Agreement . . . .”283
Here, TransAm has provided no authority to establish that TIL is “only applicable to
independent contractors.” On the contrary, TIL was promulgated to protect “individual owneroperators due to their weak bargaining position.”284 To show that TIL applies, an owner-operator
does not need to prove they are an “independent contractor.” Rather, an owner-operator only must
establish that “(1) he was an ‘owner’ of the truck and trailer as that term is defined in the

282

2014 WL 2604035 (D. Kan. 2014).

283

Id. at *9.

284
Owner Operator Indep. Drivers Ass’n, Inc. v. Swift Transp. Co., Inc., 367 F.3d 1108, 1110 (9th Cir. 2004)
(emphasis added).

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regulations; and (2) he ‘leased’ that equipment to defendants.”285 As it would be possible to own
a truck yet still qualify as an “employee,” the terms “independent contractors” and “owneroperators” are not mutually exclusive.286 Accordingly, the Rule 23 Plaintiffs would not be
precluded from arguing that they are “employees” in this case.287 Furthermore, there are only two
Named Plaintiffs remaining, and TransAm has not established that they were class members in
Fox. TransAm’s motion for summary judgment is therefore denied with respect to this argument.
Fifth, TransAm’s motion for summary judgment is denied with respect to its assertion that
Plaintiffs were properly classified as “independent contractors” under the KWPA. There are not
enough uncontroverted facts to apply the “right to control” test to say that either party is entitled
to judgment as a matter of law.
Sixth, TransAm’s motion is denied with respect to the argument that certain opt-in
Plaintiffs should be precluded from recovering a third year of minimum wage or liquidated
damages. TransAm’s argument is that portions of the opt-in Plaintiffs’ claims are affected by the
statute of limitations. As this Order is dismissing the opt-in Plaintiffs from the case, this issue is
moot.
Finally, TransAm’s motion is granted with respect to the final issue. TransAm is entitled
to judgment precluding Named Plaintiffs from recovering a third year of minimum wage or

285

Shimko v. Jeff Wagner Trucking, LLC, 2014 WL 7366190, at *2 (W.D. Wis. 2014).

286

See, e.g., Corporate Express Delivery Sys. v. NLRB, 292 F.3d 777, 780–81 (D.C. Cir. 2002) (concluding
that owner-operator drivers were “employees” and not “independent contractors” under the National Labor Relations
Act).
287

See Berger Transfer & Storage v. Cent. States, Se. & Sw. Areas Pension Fund, 85 F.3d 1374, 1377 (8th
Cir. 1996) (refusing to apply offensive issue preclusion over issue of whether owner-operators were “employees” or
“independent contractors” in the present case despite the fact that an owner-operator was previously ruled to be an
“employee” in a state workers’ compensation case).

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liquidated damages. The three-year statute of limitations is an exception to the two-year statute,
and a party claiming the exception carries the burden to show the violation was willful.288 To meet
the willfulness standard, the Supreme Court requires a claimant show the employer either knew or
showed reckless disregard as to whether its conduct was prohibited by the FLSA.289
TransAm argues that it employs Company Drivers as well as Owner Operators such as
Plaintiffs. In compliance with its obligations under the FLSA, TransAm requires that its Company
Drivers enter the total number of hours driven on a daily basis, in part, to ensure that Company
Drivers receive the minimum wage each week. In addition, TransAm points out that the Internal
Revenue Service previously confirmed TransAm properly classified its workers as independent
contractors. The Department of Labor confirmed this finding in a subsequent investigation.
Accordingly, TransAm argues, even if the finder of fact concludes that TransAm misclassified the
Owner Operators, it cannot be said that TransAm acted willfully in failing to pay minimum wage.
Here, the uncontroverted facts simply do not support the inference that TransAm violated
the FLSA willfully. In their response, Plaintiffs only offered the conclusory statement that there
are genuine issues of material fact as to whether TransAm willfully misclassified Plaintiffs as
“independent contractors.” Plaintiffs have not offered a single fact that—even if viewed in the

288

See 29 U.S.C. § 255(a); McLaughlin v. Richland Shoe Co., 486 U.S. 128, 134–35 (1988).

289
See McLaughlin, 486 U.S. at 135. Plaintiffs cite to Fowler v. Incor, 279 F. App’x 590, 599 (10th Cir.
2008) for the proposition that “[t]o avoid liquidated damages, an employer bears the burden to show that ‘to the
satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable
grounds for believing that his act or omission was not a violation of [the FLSA].’ ” Doc. 488, p. 48. In doing so,
Plaintiffs are attempting to mislead the Court. Fowler clearly states “[a]lthough a standard of willfulness applies to
both liquidated damages and the statute of limitations under the FLSA, the definitions and burdens of proof differ for
each.” Fowler, 279 F. App’x at 599. The issue here is whether TransAm willfully violated the FLSA such that the
three-year statute of limitations should apply—it does not concern liquidated damages. Thus, the “good faith” burden
is inapplicable. Had Plaintiffs continued to read the case, Fowler clearly states that “[t]he employee bears the burden
of proving that the employer acted willfully” for the three-year statute of limitations to apply. Id. at 600.

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light most favorable to Plaintiffs—would suggest TransAm “knew or showed reckless disregard
as to whether its conduct was prohibited by the FLSA.”290
Accordingly, the Court also grants TransAm’s motion to the extent that Named Plaintiffs
will only be allowed to seek damages pursuant to the two-year statute of limitations. However, as
this Order is dismissing the opt-in Plaintiffs from this case, and they will be free to pursue litigation
on their own behalf, the Court does not extend this ruling to the dismissed opt-in Plaintiffs.
V.

Remaining Motions

The Court’s ruling on the previous motions have rendered the remaining nine motions
moot, as these motions all pertain to expert opinions regarding class characteristics and damages,
discovery disputes, or the withdrawal of certain opt-in Plaintiffs (Docs. 448, 454, 455, 456, 457,
460, 465, 495, and 518).
IT IS THEREFORE ORDERED that TransAm’s Motion for Judgment on the Pleadings
(Doc. 463) is hereby GRANTED.
IT IS FURTHER ORDERED that TransAm’s Motion to Decertify FLSA class (Doc.
447) is GRANTED.
IT IS FURTHER ORDERED that TransAm’s Motion for Decertification of the Rule 23
Class (Doc. 446) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Partial Summary Judgment
(Doc. 443) is DENIED.
IT IS FURTHER ORDERED that TransAm’s Motion for Summary Judgment (Doc. 445)
is GRANTED in part and DENIED in part.

290

See McLaughlin, 486 U.S. at 135.

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IT IS FURTHER ORDERED that Plaintiffs’ Motion to Exclude Evidence and for Other
Relief Due to Defendant’s Spoliation of Evidence (Doc. 448) is DENIED as moot.
IT IS FURTHER ORDERED that TransAm’s Motion to Exclude Plaintiffs’ Expert
Jeremy J. Albright (Doc. 454) is DENIED as moot.
IT IS FURTHER ORDERED that TransAm’s Motion in Limine to Bar Plaintiffs’ Survey
Evidence (Doc. 455) is DENIED as moot.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Withdraw Certain Opt-In
Plaintiffs (Doc. 456) is DENIED as moot.
IT IS FURTHER ORDERED that TransAm’s Motion to Exclude Plaintiffs’ Expert
Michael Belzer, Ph.D. (Doc. 457) is DENIED as moot.
IT IS FURTHER ORDERED that TransAm’s Motion in Limine to Exclude Plaintiffs’
Hours-Worked Calculation (Doc. 460) is DENIED as moot.
IT IS FURTHER ORDERED that TransAm’s Motion to Strike Plaintiff’s Experts’
Improper “Rebuttal” Opinions (Doc. 465) is DENIED as moot.
IT IS FURTHER ORDERED that TransAm’s Motion for Sanctions to Strike
Declarations (Doc. 495) is DENIED as moot.
IT IS FURTHER ORDERED that Plaintiffs’ Motion in Limine to Exclude or Otherwise
Limit the Expert Testimony of Mr. Robert W. Crandall (Doc. 518) is DENIED as moot.
IT IS SO ORDERED.
Dated this 28th day of March, 2018.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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