Hose v. Henry Industries, Inc.

Filing 56

MEMORANDUM AND ORDER granting 42 plaintiff's Motion for Conditional Certification. Signed by Chief Judge J. Thomas Marten on 9/24/14. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

James Hose, on behalf of himself and all
other persons similarly situated,
Plaintiff,
vs.

Case No. 13-2490-JTM

Henry Industries, Inc.,
Defendants.

MEMORANDUM AND ORDER

Plaintiff James Hose works for Henry Industries, Inc., which coordinates with
various pharmaceutical companies for delivery services. Hose has brought the present Fair
Labor Standards Act (FLSA) claim on behalf of himself and other Henry drivers, alleging
that the drivers are employers of Henry, that the routinely work in excess of 40 hours per
week, but receive no overtime compensation. Henry contends that the drivers, some of
whom are retained by intermediary contractors, are independent contractors rather than
employees. The matter is before the court on the plaintiff’s motion for conditional
certification of the drivers as a class.
The FLSA was designed to guarantee fair compensation for employment. Barrentine
v. Arkansas-Best Freight System, 450 U.S. 728, 741 (1981). To further this goal, workers may

commence collective actions to gain fair compensation for overtime work. 29 U.S.C. §
216(b). The court administrates such collective actions to further “the legitimate goal of
avoiding a multiplicity of duplicative suits and setting cutoff dates to expedite disposition
of the action.” Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 172 (1989).
In the Tenth Circuit, courts consider FLSA class actions under a two-step approach.
First, the court conditionally certifies the class, based on a modest factual showing that the
class is similarly situated. Only during the second step, after the conduct of additional
discovery, does the court decide whether to decertify the provisional class. It is at this
second stage that the court considers “(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; (3) fairness and procedural considerations; and (4) whether
plaintiffs made the [proper] filings.” Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103
(10th Cir.2001).
The court notes as an initial matter that much of the defendant’s response to the
motion for conditional certification appears relevant to the second stage of the certification
inquiry, or even the ultimate merits of the plaintiff’s FLSA claim. Thus, in nearly two dozen
instances, the defendant disputes a factual allegation of the plaintiff as “controverted,”
citing some opposing evidence. In some of these instances, the defendant further asserts
that the allegations of the plaintiff are“not properly supported by the record,” because the
underlying authority “is nothing more than his Second Amended Complaint.” (Dkt. 54, at
7, 9).
2

This mistakes the standard applicable to first-stage, conditional certification.
Conditional certification simply requires the presence of “substantial allegations that the
putative class members were together the victims of a single decision, policy or plan.”
Thiessen, 267 F.3d at 1102. Whether there are in fact substantial allegations of a uniform
plan or policy, “the court can consider the substantial allegations of the complaint along with
any supporting affidavits or declarations.” Folger v. Medicalodges, Inc., 2014 WL 2885363, at
*3 (D. Kan. June 25, 2014) (emphasis added, citing cases). In making the decision as to
conditional certification, “the court does not weigh evidence, resolve factual disputes, or
rule on the merits of plaintiffs' claims.” Id.
Defendant further cites Judge Belot’s decision in Folger to dispute the proposition
that “the Court is not permitted to weigh the evidence at this stage in the litigation.” (Dkt.
54, at 32 n. 10). But Judge Belot, as set forth above, most explicitly agrees with the
proposition — the court does not weigh evidence.
The portions of Folger cited by Henry merely establish that, if substantial discovery
has occurred, the court may consider the results of such discovery for the purposes of
deciding whether a company-wide policy exists. 2014 WL 2885363 at *3. The court still does
not weigh evidence, and still considers the allegations advanced in the complaint. Id. (citing
Swartz v. D-J Engineering, No. 12-1029, 2013 WL 5348585, *5 (D.Kan. Sept. 24, 2013). See also
Barnwell v. Corrections Corp., No. 08-2151-JWL, 2008 WL 5157476, at *5 (D.Kan. Dec. 9, 2008);
Gieseke v. First Horizon Home Loan Corp., 408 F.Supp.2d 1164, 1166 (D.Kan.2006))).
Further, Folger reflects an unusual occurrence in FLSA certification cases. There,
3

most or all of the eleven opt-in plaintiffs supporting the claim of unpaid meal time had
been deposed. Here, only limited discovery has occurred. There has been little or no
discovery relating to the opt-in plaintiffs. The only deposition featured in the record before
the court is that Brett Henry, the chief executive officer of the defendant.
The court finds that it may properly take into account both the allegations in the
complaint and the evidence otherwise before the court. The court does not reach factual
conclusions in the event of a factual controversy, and only determines the existence of a
substantial allegation by the plaintiff.
Headquartered in Wichita, Kansas, Henry provides third party logistics services,
warehousing services, and distribution services for clients with delivery needs. These
clients, primarily pharmaceutical companies, are located throughout the nation. Henry
operates through facilities in twenty five cities in eleven states.1 Policies are implemented
on a company-wide basis.
Henry stresses that, in addition to individual persons, it also contracts with
corporations and limited liability companies, and that some of these contractors are not
themselves drivers, but intermediaries who in turn engage the actual drivers.
Henry uniformly treats all of its drivers as independent contractors, regardless of
Henry has facilities in Kansas (Hays, Salina, Topeka, and Parsons); Missouri
(Florissant, Farmington, Springfield, Kansas City, Columbia, and St. Louis); Illinois
(Belleville, Herrin, Quincy, and Springfield); Washington (Spokane and Seattle),
Arizona (Phoenix and Tucson); Wisconsin (Pewaukee and Milwaukee); as well as
California (Lodi); Iowa (Des Moines); Nebraska (Omaha); South Dakota (Sioux Falls);
and Utah (Salt Lake City).
1

4

individual circumstances. The company gives all drivers a document addressing
“Frequently Asked Questions” from independent contractors.
After the present action was filed, in October and November 2013, Henry held twoday training sessions on the classification of drivers as independent contractors. The
sessions were intended to ensure that managers knew of the factors distinguishing
independent contractors and employees. The classes, which included a mock question and
answer session, were intended to apply to all drivers, regardless of location. Henry gave
its managers a document highlighting best practices and “key rephrasing” of job duties.
These training materials also indicate drivers are uniformly classified as independent
contractors.
In its Response, Henry agrees that it uniformly considers all of its contractors to be
independent contractors, not employees. It also agrees that it held a two-day training
session for account managers to discuss the distinction between employees and
independent contractors. However, it stresses that the training simply involved providing
“neutral training materials used to demonstrate the distinction between an employee and
independent contractor” (Dkt. 54, at 7).
Again, however, at this stage, the court does not address the validity of the training
or how it affects the merits of plaintiff’s FLSA claim. Indeed, the uniform training sessions
are an indicator that Henry employed a uniform policy with respect to the drivers, and is
therefore relevant to whether the drivers’ positions are substantially similar.
Because Henry classifies all drivers as independent contractors, it does not pay
5

drivers extra for overtime.
Hose worked for Henry as a driver from April 15, 2013 until December 27, 2013.
Drivers routinely work in excess of 40 hours per week while performing duties for
defendant.
Plaintiff alleges that the drivers were “titled ... as drivers,” implying that the
defendant used this term. The cited evidence — the deposition of Hose and the affidavits
of the three opt-in plaintiffs — does not support the allegation. In Hose’s deposition, he
merely identifies the standard form Cartage Agreement he signed, which refers to him as
“Contractor.” The three affidavits all simply recite that affiant “worked as a delivery driver
for Defendant Henry Industries” for a particular time period, without any indication that
Henry titled or termed them as drivers.
The plaintiff alleges that the schedules imposed require the drivers to routinely
work more than 40 hours a week. Some of the evidence cited by plaintiff does not support
the allegation. That is, plaintiff cites the affidavits of Jones and Beard, but their affidavits
only state that each individually routinely worked more than 40 per week; they make no
representations about the schedules of other drivers.
However, the plaintiff relies also on his assertions to this effect in the Second
Amended Complaint. As the court noted earlier, allegations in a complaint may properly
be taken into account in deciding whether to approve conditional certification.
Evidence from the three opt-in driver plaintiffs indicates that drivers perform
similar duties, using their personal vehicles to perform distribution and delivery services
6

for Hose’s customers. Hose’s further allegation that “[a]ll” drivers perform “identical”
duties is not supported in the evidence.
Henry stresses that the actual services performed by the drivers differ, and may take
the form of “line hauling” (carrying bulk freight), typical route deliveries based on a
customer’s schedule, and “stat” or special deliveries required by a customer.
Henry requires its contractors (whether drivers or contractors who in turn employ
drivers) to sign a uniform Cartage Agreement. The cartage agreement contains twenty
numbered sections, set forth in largely boilerplate terms, governing:

•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Engagement of Contractor
Services Covered
Manner of Performance of Service
Payments to Contractor
Insurance
Independent Contractor Status
Indemnity;
Financial Risk
Confidentiality
Non-Solicitation
Remedies for Breach of Confidentiality or Non-Solicitation
The One-Year Term of Agreement
Governing Law
Assignment of the Agreement
Motor Vehicle and Criminal Record Release
Drug Testing
Waiver
Notices
Severability
Compliance with Laws.

The Cartage Agreements differ in the Schedule A attached to each, which sets forth the

7

route and delivery services contracted for, along with payment information.
Henry maintains a uniform method for compensating drivers. Henry does not pay
drivers on an hourly basis, and does not track their time. Drivers are paid by the stop, not
by time spent driving. In some instances, actual pay rate may vary from one Cartage
Agreement to another, and whether the service was stat delivery. Contractors must submit
timely invoices for completed deliveries, and are prohibited from soliciting customers.
As noted earlier, the defendant frequently attacks suggested factual allegations as
“controverted.” At the same time, plaintiff frequently overstates what the actual, cited
evidence does establish. Thus, the plaintiff alleges that Henry “uniformly tracks drivers’
daily work performance and activities.” The evidence cited for this claim, however, does
not show that Henry actually tracks the drivers’ progress on a daily basis or in real time.
Rather, the evidence is simply that Henry’s customers require tracking of their shipments
(along with the DEA, since the deliveries involve pharmaceuticals).
To facilitate this tracking, some 80 percent of the drivers use an electronic tracking
system called Xcelerator. This system tracks delivery times, the delivery address, the bar
code, and the recipient’s signature. Xcelerator records delivery times by capturing when
the drivers scan the bar code and the recipient signs for the product.
Plaintiff alleges that Xcelerator gives Henry the ability to view a specific driver’s
location at any given time. The evidence does not support this allegation. The cited
evidence establishes only that Henry, if it chose to do so, could view “the time at which [the
drivers] were ... at each client’s location.” The evidence does not indicate that Henry can
8

or does monitor drivers along their routes or at other times.
The plaintiff alleges that “Defendant maintains tracking data generated by
Xcelerator on a central server.” Again, this misstates the evidence, which shows that
Xcelerator is operated by a separate company, Key Soft. Henry and its customers can access
the data on the Key Soft server. There is no evidence as to whether drivers are actually
monitored on any substantial basis.
Plaintiff alleges that “Xcelerator ... provides drivers with the order of their daily
route.” Henry argues that this errs in suggesting that it controls the drivers’ delivery routes,
and fails to accurately reflect the evidence, which simply states that “the customers load
their route schedules onto to the [Xcelerator] scanners,” thereby determining the delivery
order. If there is a stat delivery request, Henry dispatchers look at Xcelerator information
to see which drivers are close. Drivers don’t have to accept a stat request.
Some customers do not require Xcelerator tracking, and are satisfied with
handwritten receipts.
Henry’s pharmaceutical clients typically require drivers to arrive at a specific time,
and make route deliveries in order. The plaintiff asserts that drivers face uniform delivery
guidelines, but the evidence establishes only that Henry’s clients set forth delivery
schedules and guidelines, which Henry then communicates to the drivers. Henry contacts
drivers to let them know if the client has additional goods for pick up or if a route needs
to be changed. Under the Cartage Agreement, drivers must follow client route changes, but
they are free to turn down stat requests.
9

The plaintiff alleges that Henry requires drivers to present a “uniform appearance.”
The cited evidence, the deposition testimony of Brett Henry, does not fully support this
allegation. Henry specifically denied that the defendant requires drivers “to look a certain
way.” Drivers have been asked to maintain a certain level of personal hygiene, but this has
occurred only after a customer has complained about a driver’s appearance.
The plaintiff alleges that Henry “requires drivers wear uniforms bearing the Henry
Industries logo.” Mr. Henry did not testify to this effect. He testified that the requirement
for some form of uniform is generated by the clients’ contracts, because the clients expect
proof of identification that the delivery is properly authorized. To provide this assurance,
clients typically require some form of identification badge, and a shirt indicating the
driver’s status. Mr. Henry did not testify that all drivers wear shirts with the Henry logo.
He testified that drivers may wear the Henry logo if directly contracted with Henry; if they
work under an intermediary contractor, they can wear that company’s logo on the shirt.
Mr. Henry testified that the failure to comply with instructions as to appearance could
result in termination of the Cartage Agreement, but this does not appear to have been a
frequent occurrence, and appears to be at issue only where a client makes a complaint
about a particular driver.
The plaintiff alleges that drivers must “provide and maintain their own personal
vehicles for delivery and distribution.” (Dkt. 43, at 9). This again somewhat overstates the
evidence, which does not establish that all, or even most, drivers supply their own personal
vehicles. Asked directly if a driver must supply “his own personal vehicle,” Mr. Henry
10

agreed to (the rather obvious) fact that “[a] driver must have a vehicle to complete the
routes.” As noted earlier, some of Henry’s contractors in turn contract with drivers, and
there is no evidence about whether such drivers supply their own personal vehicles. It is
uncontroverted that Henry does not have vehicles which it supplies to drivers.
The plaintiff alleges that Henry “establishes specific standards governing vehicle
use.” In fact, the evidence shows that Henry does not have any specific standards for
drivers’ vehicles, other than they are, in fact, able to carry out the required deliveries. The
Cartage Agreements provide that drivers’ vehicles have to be licensed and insured, and
drivers must supply their own insurance. However, this does not appear to impose any
burden in addition to that which all motorists face.
The plaintiff provides only a limited response to the defendant’s evidence in
opposition to conditional certification. The plaintiff does note, accurately, that courts
generally afford little importance to the so-called “happy camper” affidavits of co-workers,
offered by defendant. See Chastain v. Cam, No. 13-1802-SI, 2014 WL 3734368, *5 (D. Or. July
8, 2014) (happy camper affidavits not considered at the conditional certification stage). The
plaintiff also urges the court to ignore all evidence submitted by the defendant on the
grounds that he “has not yet had the opportunity to test the veracity of these statements
through deposition testimony.” (Dkt. 55, at 14).
As to the evidence from Mr. Henry, this is inaccurate. Counsel for the plaintiff
deposed Mr. Henry, in detail, over two separate days in February, 2014, with over 500
pages of transcript resulting. Of the particular issues raised in Henry’s affidavit, it appears
11

that plaintiff’s counsel could and did make inquiry as to those subjects during the February
depositions. For example, Henry asserts in response to the motion for conditional
certification that it had no pre-set standard rate which it imposed for all deliveries, or even
all routes, and that the requirement for the Xcelerator tracking system exists because its
clients insist on it. (Dkt. 54, at p. 22 ¶ 15; p. 25 ¶ 27) ¶ 15).
At the same time, the evidentiary record before the court is far more limited than
that presented in Folger. Most of the factual assertions in support of defendant’s factual
version of events comes not from Mr. Henry, but the affidavit of Breck Nickell, the
defendant’s President. (Id. at 20-23, ¶¶ 1-3, 6, 8-19, 16-17, 20-21, 25, 29-33). There is no
indication that plaintiff has had the opportunity to test Nickell’s assertions through
discovery.
In addition to Judge Belot’s decision in Folger, Henry relies on a number of decisions
which have denied certification, but the relevance of these cases here is limited.
As noted earlier, Folger involved a relatively rare circumstance where the issue of
conditional certification arose after intensive discovery, including the depositions of the
opt-in plaintiffs. As the court stressed, their individual reasons for the lack of payment for
meal period work were “all across the board.” 2014 WL 2885363, at *4. Indeed, the
depositions showed that in many instances the opt-in plaintiffs had in fact been paid for
work during break time. Finally, the court stressed that the plaintiff’s allegations arose
from a very small sample of the two thousand employees of the defendant.
In reaching his decision to deny, without prejudice, conditional discovery, Judge
12

Belot also relied in part on Saleen v. Waste Management, 649 F.Supp.2d 937 (D. Minn. 2009)
(“the Court is unaware of any court that has agreed with plaintiffs' position that evidence
submitted by a defendant resisting conditional certification should be completely
ignored”). In Saleen, the court denied conditional certification, although plaintiff had
submitted 112 declarations of employees claiming to have been pressured to work through
meal breaks. However, the defendant was a particularly large corporation and the
declarations represented less than 1% of its work force. Further, defendant supplied
evidence that in over 200,000 instances, it had in fact paid for work during meal time,
which undercut the notion of a company-wide policy of requiring unpaid meal-time work,
and other evidence suggested that some workers were not paid for meal-time work
because of local decisions by individual managers, not a company wide policy. Ultimately,
the court stressed that the issue was “a close one,” and simply concluded that an earlier
Magistrate Judge’s decision denying conditional certification was not clearly erroneous.
In Bamgbose v. Delta-T Group, 684 F.Supp.2d 660 (E.D.Pa. 2010), the prospective class
comprised some 11,000 contract workers employed by a temporary healthcare staffing
agency, which acted through various affiliates across the country. The plaintiff argued that
the workers were similarly situated because the agency had a uniform policy of treating
all workers as independent contractors, stressing particularly that the affiliates used a
common intranet, telephone and payment system, and that the agency’s coordinators
“determine which healthcare workers receive opportunities.” 684 F.Supp.2d at 668.
The court held that conditional certification required more than the allegation of
13

uniform treatment:
The Court must analyze whether the healthcare workers are similarly
situated with respect to the analysis it would engage in to determine whether
the workers are employees or independent contractors. The Court cannot
only look to Delta–T's uniform classification of the workers or its common
payment procedures, intranet, and telephone systems. Instead, it must
determine whether the proof to demonstrate that the workers are
“employees” or “independent contractors” can be applied to the class as a
whole.
Id. at 668-69 (footnote and citations omitted).
After noting the relevant Third Circuit standard for the distinction between
employees and independent contractors, the court concluded that the proposed
classification could not be established through evidence obtained on a collective basis,
given the wide disparity in the healthcare workers involved, who ranged from
professionals with doctorates to those with only a high school diploma. Id. at 665. The
evidence before the court suggested that the healthcare workers varied widely in (a) the
degree of supervision imposed by the defendant, (b) the extent to which workers could
negotiate their scheduled work, (c) the extent to which the agency’s client acted as a joint
employer, (d) whether workers could negotiate with clients for compensation, (e) the skills
or training of the workers, and (e) the relative permanence of the work relationship. The
court found only one of the relevant factors supported through common evidence (the fact
that the staffing of healthcare workers was integral to the defendant’s business). However,
the court concluded, conditional certification “cannot be maintained when the class
appears similarly situated with respect to only one factor.” Id. at 671.

14

Pfaahler v. Consultants for Architects, Inc., No. 99-C-6700, 2000 WL 198888 (N.D. Ill.
2000) was not decided under a conditional certification analysis.
In re FedEx Ground Package System Employment Practices Litig’n, 662 F.Supp.2d 1069
(N.D. Ind. 2009) provides little help here. The decision there to deny conditional
certification of the FLSA claim of the prospective class of drivers was focused on the court’s
determination that the named plaintiff was not an adequate representative of the
prospective class.
After an extensive discussion of that issue, the court observed, “[m]oreover,” that
conditional certification “must take into consideration the actual history of the parties'
relationship, necessitating an individualized examination of the multiple factors relating
to each driver's employment.” 662 F.Supp.2d at 1083. This conclusion was based on two
cases, Pfaahler and Reich v. Hornier Distribution, 362 F.Supp.2d 1009, 1013-14 (N.D. Ind.
2005). As the court previously noted, Pfaahler was not decided under a conditional
certification standard. Reich was decided at the conditional certification stage, but its
conclusion — that the plaintiff class was not similarly situated similarly where “liability
depend[s] on an individual determination of each employee's duties” — is directly contrary
to Tenth Circuit precedent. See Thiessen v. General Electric Capital, 267 F.3d 1095, 1102-03
(10th Cir. 2001) (the “disparate factual and employment settings of the individual
plaintiffs” is reserved for the second, decertification step).
The plaintiff in Chemi v. Champion Mortgage, No.05-1238, 2006 WL 7353427 (D.N.J.
June 21, 2006) sought to certify a class of loan officers, and alleged that the defendant
15

improperly classified the officers as exempt to avoid the payment of overtime. The court
first concluded that a bare assertion of misclassification was insufficient, since this would
render certification essentially automatic in all cases. 2006 WL 7353427 at *4 (citing cases).
Other than this conclusory assertion, the claim for certification was strikingly absent in
specifics, the court stressing that
plaintiffs have failed to make any initial showing in either their opening brief
or their reply, that supports a determination that putative class members are
similarly situated as to job requirements or pay provisions. Indeed, in their
initial brief, plaintiffs failed to submit a single affidavit in support of its
motion, instead relying entirely on the pleadings and conclusory allegations
in its brief. Numerous courts have found such allegations insufficient to
satisfy the burden of demonstrating the similarly situated standard.
Id. at *5. The court then required supplemental briefing, and was again met with a complete
failure to supply anything other than “conclusory, bare bones facts” assertions. Id. at *6.
The cases cited by Henry are distinguishable. Unlike Chemi, the plaintiff here has
fleshed out his allegations in the Complaint with specific allegations of the duties imposed
on the drivers, and the rough similarity of the defendant’s relationship to those drivers. The
plaintiff has done more than simply allege a misclassification exists. Unlike Bamgbose, the
prospective class does not appear to vary widely in terms of its education and training.
Two recent cases involving the employment status of temporary drivers provide
support for conditional certification.
In Holliday v. J.S. Express, No. 12-1732-ERW, 2013 WL 2395333 (E.D Mo. May 30,
2013), the court granted conditional certification of a class of over 1200 courier drivers
operating in 13 states. As in the present case, the named plaintiffs in Holliday alleged that,
16

while defendant classified them as independent contractors, they were actually employees.
Specifically, the plaintiffs alleged that defendant required drivers wear uniforms, carry
cellphones, and forced them to pay for their own fuel, insurance, and automotive presence.
Holliday is distinct in that the plaintiffs grounded their motion for conditional
certification on the findings of a Department of Labor investigative report relating to the
defendant, and much of the opinion is devoted to the defendant’s argument that the DOL
report was inadmissible hearsay. The court held that the report was admissible as a public
record, and that the drivers were similarly situated for certification purposes. The court
also rejected the contention that certification should be denied because of the
individualized nature of each driver. As in the present case, the defendant argued that
there were significant differences in the duties of each driver, and that the drivers “work
in different states, in different industries, and for different ... clients with distinct
demands.” 2013 WL 2395333, at *6. The court nevertheless held that conditional
certification was appropriate:
As noted earlier, the first stage of certification requires nothing more
than substantial allegations that putative class members were together the
victims of a single decision, policy or plan. The Court need not make a
credibility determination with respect to contradictory evidence presented
by Defendant at this stage. Defendant's argument that there is no feasible
way to adjudicate due to the necessity of individual inquiries is premature.
Manageability is an issue for the second stage of the conditional certification
analysis.
Id. (citing Arnold v. DirecTv, Inc., No. 4:10CV352 JAR, 2012 WL 4480723, at *7 (E.D.Mo. Sept.
28, 2012)).

17

Notably, although Holliday is prominently featured in the plaintiff’s Memorandum
in Support of conditional certification (Dkt. 43, at 5 n. 2, 14, 15-17, 19), the defendant does
not mention the case in its Response. While there is no DOL report as to Henry’s
employment practices, the plaintiff has still provided substantial allegations that Henry’s
drivers are similarly situated for purposes of the FLSA case.
In Pena v. Handy Wash,

F.Supp.2d

, 2014 WL 2884559, *9 (S.D. Fla. June 18,

2014), the court approved conditional certification of a class of drivers employed by a
company providing patient transportation services. Because the services were not
emergency ambulance services, the drivers were not highly paid, and the defendant
uniformly treated all drivers as independent contractors. The court stressed that it did not
address the merits of plaintiff’s claim that the defendant misclassified the drivers as
contractors, only that the drivers were similarly situated and individual differences as to
the drivers’ routes, rates, or vehicle ownership were insufficient to defeat conditional
certification. With respect to the nature of the driver class, the court observed that the
standard required the similar, not identical positions. 2014 WL 2884559, at *6-7 (citing also
Gipson v. Southwestern Bell Telephone, No. 08-2017-EFM, 2009 WL 1044941, at *3 (D.Kan. Apr.
20, 2009) (“Variations among actual job title or some responsibilities does not preclude
notice stage certification where all employees share general duties and the defendant
denies overtime pay to all”)
As to the existence of individualized differences among the drivers, the court found
that these concerns were insufficient to prevent conditional certification:
18

Defendants oversee the manner in which the drivers' work is performed and
ensure drivers comply with the Policy Manual and the requirements of the
Paratransit Contract, which required Zuni to monitor performance levels and
standards of conduct for drivers, and ensure compliance with mandatory
standardized training and minimum requirements for vehicles. Independent
contractor drivers lacked control over assignments and did not exercise
discretion or make management decisions, instead following dispatch
assignments provided by Defendants. Although drivers were required to
complete certain basic training, the position did not require any special skills.
As discussed, Defendants provided the opt-in plaintiffs with vehicles,
automobile insurance, and a Nextel phone to communicate with dispatchers.
The extent the independent contractor drivers' services were an integral part
of Defendants' business is unclear as Defendants also have employee drivers
responsible for routes. But Defendants clearly rely on drivers to provide
paratransit service to clients in Miami-Dade County.
Admittedly, several of the economic realities factors will require a
more individualized analysis, including the degree of permanency and
duration of the working relationship, facts specific to each driver. The dates
of employment for Peña and the opt-in plaintiffs differ. Additionally,
Defendants assert some independent contractor drivers, such as RamirezValandia, were incorporated, while others worked in their individual
capacities. Whether potential plaintiffs were incorporated or had the ability
to employ others to accomplish their duties may also require an
individualized assessment. Ramirez-Valandia's independent contractor
agreement is between Handy Wash and Hugo's Driver Corp., and RamirezValandia identifies himself as the president of Hugo's Driver Corp.
Nonetheless, the issue of incorporation is not cause to deny certification at
the notice stage. Of the opt-in Plaintiffs, there is only evidence RamirezValandia was incorporated. Whether other opt-in plaintiffs were
incorporated may be considered at the second-tier inquiry. Peña and the
opt-in plaintiffs are similarly situated even considering the economic realities
of their employment. Defendants may raise the issue of the fact-intensive
nature of any class treatment on a motion to decertify, after discovery has
concluded.
Id. at *11 (record citations omitted). See also Singleton v. B&H Transportation, No. No 13-0882,
2014 WL 1572983 (E.D. Wis. April 17, 2014) (granting conditional certification of driver
class, where defendants gave drivers their passenger pickup schedules, corroborating
19

affidavits indicated that drivers worked in excess of 40 hours per week, and defendant’s
evidence of a lack of a uniform policy was equivocal); Spellman v. American Eagle Express,
No. 2011 WL 4102301 (E.D. Pa. May 18, 2011) (same result, based on driver averments that
“they worked or work as a courier for AEX under AEX's close direction, supervision, and
control [and] each frequently worked more than forty hours per week” without overtime
payment).
The court finds that conditional certification is appropriate. While Henry stresses
that individual drivers undertook different types of delivery (regular route deliveries, line
hauling, and stat deliveries), it is not clear how much of each type of work the drivers
generally performed. While such considerations may affect the second-stage decertification
analysis, they are not controlling here. More importantly, precise identity of situations is
not required. All of the types of delivery cited by defendant are, in the end, driving. There
is no indication that Henry’s drivers are substantially different in terms of skills or training.
While some unknown number of drivers contract with Henry indirectly through
intermediaries, this does not justify denial of conditional certification. Rather, after
additional discovery, the matter may be relevant to decertification or the creation of an
additional subclass.
Similarly, the defendant’s insistence that is the pharmaceutical customers who create
the routes or schedules for the drivers, and that it is the customers who insist drivers wear
uniforms, is insufficient to defeat conditional certification. It would be remarkable indeed
to suggest that the defendant imposed requirements out of sheer caprice. Businesses exist
20

to satisfy customers. Henry’s factual argument ultimately may have relevance to the merits
of plaintiff’s FLSA claim. If pharmaceutical companies indeed demand electronic tracking
and the wearing of uniforms, this would affect the “economic realities” of the relationship
of the parties. See Baker v. Flint Engineering & Construction, 137 F.3d 1436, 1440-41 (10th Cir.
1998) (discussing the definition of “employees” under the FLSA).
But at the conditional certification stage, the court does not address the merits of the
plaintiff’s claim. Indeed, if anything, the defendant’s argument serves to support
certification. Since Henry’s customers require drivers to conform to certain requirements
as a part of their industry generally, there is every reason to believe that Henry drivers in
California face the same general requirements as those in Missouri.
The plaintiff has presented substantial allegations that the prospective class is
similarly situated, and that it is subject to a uniform policy of treating all drivers as
independent contractors. The drivers are employed under a standard form Cartage
Agreement. There are substantial allegations that they must provide their own vehicles,
and follow routes which require more than 40 hours per week to complete. The defendant
maintains a uniform method for compensating drivers, although individual pay rates may
vary. Most drivers carry electronic tracking devices and are required to submit timely
invoices. Drivers are prohibited from independently negotiating with customers for
additional delivery services. The court finds that conditional certification is warranted.
The defendant presents two alternative arguments, in the event the court grants
plaintiff’s motion. First, the defendant suggests that any proposed class be limited to
21

drivers operating out of Henry’s Florissant, Missouri facility, on the grounds that plaintiff
and the three opt-in plaintiffs only have personal knowledge of that facility. Second, the
defendant proposes to modify the proposed class notice in three respects: (1) it wishes to
limit notice to Florissant drivers, (2) it argues the notice should be modified to add a
warning that opt-in plaintiffs may be subject to a countersuit for indemnification, and (3)
the court should strike the notice’s reference to a three-year statute of limitations, which
only applies in the event of willful violations of FLSA.
The court finds that the conditional certification should not be limited to Florissant.
The four District of Kansas cases cited by Henry in support of this result all turn upon the
specific circumstances involved, and are not directly relevant here. In Hobbs v. Tandem
Environmental Solutions, No. 10-1204-KHV, 2011 WL 484194, at *2 (D. Kan. Feb. 7, 2011), the
court limited the class to one branch of the defendant in light of the fact that “plaintiffs
make no allegations of company-wide policies or practices.” In Braun v. Superior Indus. Int'l,
Inc., No. 09-2560-JWL, 2010 WL 3879498, at *6 (D. Kan. Sept. 28, 2010), the court stressed
that “there are no allegations or evidence from which the court could infer that employees
in those facilities are required to perform pre-and post-shift work.” In Pegues v. Carecentrix,
Inc., No. 12-2484-CM, 2013 WL 1896994, at *3 (D. Kan. May 6, 2013), the court stressed that
plaintiff’s allegations, based on a single email sent before the effective rollout of a payroll
system “are insufficient to establish any level of company-wide policy”). Finally, in
Blancarte v. Provider Plus, Inc., No. 11-2567-JAR-KGG, 2012 WL 4442642, at *3 (D. Kan. Sept.
26, 2012), the court noted that “[p]laintiff does not name a single co-worker who shares his
22

concerns, or one willing to provide an affidavit or desire to opt-in to the litigation.”
Of course, in the present case, plaintiff makes precisely such allegations of a
company-wide, uniform policy, and offers just such evidence of additional workers who
wish to opt-in. In Braun, the plaintiffs argued that they were not paid for work performed
before and after their official shift. Their evidence, however, related to one facility only, and
the court recognized that such additional work might well have been caused by the
decisions of “a handful of ‘rogue’ supervisors” in plaintiff’s local facility. Here, the
plaintiff’s allegations relate to a company-wide policy in how Henry treats its drivers. The
drivers are employed pursuant to a standard form Cartage Agreement. All of the evidence
presented to the court from both sides indicates that the decision to treat drivers as
independent contractors is a company-wide policy.
As noted earlier, Henry offers various justifications, such as the demands of
customers, for the conditions faced by the drivers. Such rationales again may be relevant
to the second stage in the process, or may serve to defeat plaintiff’s FLSA claim on the
merits. But such justifications are company-wide considerations. Despite the opportunity
to present extensive evidence from its corporate officers, Henry has done nothing to
indicate that its treatment of drivers is one thing in Seattle and something else in Phoenix.
The court therefore declines to modify the proposed class, and declines to modify
the proposed class to reflect such a geographic limitation. In addition, the court denies the
request to modify the proposed class notice to issue a warning that opt-in plaintiffs may
be subject to a counterclaim for indemnification.
23

Plaintiff cites two cases to support its warning suggestion. In both Dobbins v.
Scriptfleet, Inc., No. 11-1923-T, 2012 WL 2282560 (M.D. Fla. June 18, 2012) and Spellman v.
American Eagle Express, 680 F.Supp.2d 188, 190 (D.D.C. 2010), the courts denied motions to
dismiss the defendants’ indemnification counterclaims. In each instance, the counterclaim
was advanced only against the named plaintiffs (and, in Dobbins, her attorneys). Neither case
was before the court for certification, and neither addressed the content of the conditional
class notice. Nothing in either opinion suggests the court would approve such a warning
to opt-in plaintiffs. Whether the defendant might ultimately be entitled to indemnification
is an entirely separately question from whether warnings should be included in the class
notice. Thus, while prevailing defendants in federal civil litigation are generally entitled
to an award of costs, courts typically refuse requests to include a warning of possible costs
in a class notice. See, e.g., Williams v. U.S. Bank Nat. Ass’n, 290 F.R.D. 600, 613 (E.D. Cal.
2013) (noting chilling effect of such notice); Martinez v. Cargill Meat Solutions, 265 F.R.D.
490, 500 (Neb. 2009); Littlefield v. Dealer Warranty Services, 679 F.Supp.2d 1014, 1019 (E.D.
Mo. 2010). Given the absence of any relevant authority, and the broad and remedial
purpose underlying the FLSA, the court declines to include the proposed warning.
Finally, the court declines to include a provision in the notice as to the shorter statute
of limitations period applicable to non-willful violations of the FLSA. Such notice would
require an explication of “willfulness” which might be confusing to the ordinary layperson.
More importantly, willfulness “go[es] to the merits of the case and not whether notice
should be issued to potential claimants.” Resendiz-Ramirez v. P & H Forestry, 515 F.Supp.2d
24

937, 942 (W.D.Ark.2007). See also Regan v. City of Charleston, No.13-3046-PMD, 2014 WL
3530135, at *4 (D.S.C. July 16, 2014); Ott v. Publix Super Mkts. No. 12-0486, 2013 WL 1874258,
at *3 (M.D.Tenn. May 3, 2013); Sylvester v. Wintrust Fin. Corp., No. 12-01899, 2013 WL
5433593, at *5 (N.D.Ill. Sept.30, 2013) (even a “conclusory willfulness allegation is sufficient
to justify providing notice to the putative class on the basis of the potentially applicable
three-year period”); White v. 14501 Mancheser, Inc., 2012 WL 5994263, at *7 (E.D. Mo. Nov.
30, 2012) (conditionally certifying three year-class on grounds of judicial economy).
IT IS ACCORDINGLY ORDERED this 24th day of September, 2014, that the
plaintiff’s Motion for Conditional Certification (Dkt. 42) is hereby granted.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

25