Ouadani v. Dynamex Operations East, LLC

Filing 97

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered.The Court ALLOWS IN PART and DENIES IN PART Ouadani's motion for class certification as to Counts I and II of the complaint (Dkt. No. 70 ). The Court certif ies the following class:All individuals who performed Google Express deliveries between July 16, 2014 and October 14, 2016 who (1) were categorized by Dynamex as "indirect drivers," (2) were associated with a master independent contracto r, and (3) were not W-2 employees of their master independent contractor.The Court DENIES Ouadani's motion for summary judgment as to Count I of the complaint (Dkt. No. 71 ). A status conference will be held on October 1, 2019 at 9:30 AM.SO ORDERED.(Lara, Miguel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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Plaintiff,
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v.
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DYNAMEX OPERATIONS EAST, LLC,
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Defendant.
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___________________________________)
DJAMEL OUADANI,
on behalf of himself and
all others similarly situated,

Civil Action
No. 16-12036-PBS

MEMORANDUM AND ORDER
September 13, 2019
Saris, C.J.
INTRODUCTION
Plaintiff Djamel Ouadani (“Ouadani”) brings this lawsuit
against Defendant, Dynamex Operations East, LLC (“Dynamex”),
alleging violations of the Fair Labor Standards Act (“FLSA”),
and the Massachusetts misclassification and wage laws. He
asserts individual, class, and collective claims arising from
Dynamex’s practice of classifying drivers who perform Google
Shopping Express deliveries as independent contractors. Pending
before the Court are Ouadani’s motion to certify a class of
Google Express delivery drivers for his state law
misclassification and improper deductions claims and his motion
for partial summary judgment on the misclassification claim.
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After hearing, the Court ALLOWS IN PART and DENIES IN PART
Ouadani’s motion for class certification (Dkt. No. 70) and
DENIES his motion for partial summary judgment (Dkt. No. 71).
FACTUAL BACKGROUND
The following facts are undisputed except where otherwise
stated.
I.

The Parties
Ouadani performed Google Express deliveries from March 2016

to August 2016. He contracted directly with Selwyn & Bertha LLC
(“S&B”), which was one of companies Dynamex used to supply
drivers for Google Express deliveries. S&B classified and paid
Ouadani as an independent contractor, not an employee.
Dynamex, which is now doing business as TForce Final Mile
LLC, is headquartered in Dallas, Texas and operates a branch
office in Wilmington, Massachusetts. Dynamex is a provider of
transportation logistics services, which include providing sameday delivery services for its clients. From June 1, 2014 to
October 14, 2016, Dynamex contracted with Google Inc. (“Google”)
to provide drivers to make Google Express deliveries across
several major U.S. cities, including Boston, Massachusetts.
Dynamex’s Wilmington office was responsible for Google Express
deliveries in the Greater Boston area.

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II.

Dynamex’s Business
a.

The Google Express Contract

Google Express is a same-delay delivery service that allows
consumers to place delivery orders online from local retail
stores such as Target, Walgreens, or Staples. Dynamex entered
into a Statement of Work (“SOW”) with Google effective June 1,
2014. Under the SOW, it agreed to provide drivers to perform
Google Express deliveries for a two-year period. Prior to the
expiration of the SOW, Dynamex and Google entered into an
amendment to the SOW (“Amended SOW”) effective June 1, 2016. The
Amended SOW was to last until November 30, 2016 unless otherwise
terminated by the parties. The SOW and the Amended SOW included
substantially the same terms. Google terminated the Amended SOW
sometime in October 2016. Dynamex stopped performing services
under the Amended SOW on October 14, 2016.
The SOW (and the Amended SOW) included a list of minimum
qualifications for Google Express drivers. Drivers were required
to have at least two years of experience, have a clean driving
record, speak fluent, understandable English, and be comfortable
using a smartphone and related technology. They were also
required to be well-groomed and wear approved Google apparel.
Dynamex was responsible for making sure drivers satisfied these
qualifications. The SOW also required that the drivers complete
a Google Express orientation and abide by Google’s standard
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operating procedures in making deliveries. Dynamex was
responsible for training the drivers on Google’s standard
operating procedures. This included administering Googledesigned training programs but also “developing and coordinating
orientation programs based on identified needs.” Dkt. No. 72-3
at 3-4. For example, it was Dynamex’s responsibility to
“initiat[e], maintain[] and supervis[e] all necessary safety
precautions and programs.” Id. at 4. Once drivers were trained,
Dynamex had a continuing obligation to monitor driver
performance to ensure that deliveries were made on time and in
accordance with Google’s standard operating procedures.
b.

Masters, Agents, and Indirect Drivers

Dynamex contends it did not have any W-2 employees that
performed Google Express deliveries. In the beginning,
deliveries were performed by (1) independent contractors who
contracted directly with Dynamex, (2) drivers who worked for
Master Independent Contractors (“Masters”) that contracted with
Dynamex, and (3) drivers who worked for Agents that contracted
with Dynamex. After October 31, 2014, however, Dynamex ceased
contracting directly with individual drivers and, from that
point forward, all Google Express deliveries were made by
drivers who were associated with either a Master or an Agent.1

According to Ralph Donovan, Dynamex’s designated Rule
30(b)(6) witness and the branch manager of the Wilmington
1

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Masters were the primary source of drivers Dynamex used to
complete Google Express deliveries. Masters contracted directly
with Dynamex. In order to be eligible, Masters were required to
have a business license and be an incorporated company, limited
liability company (“LLC”), or special corporation. There were
two type of drivers provided by Masters: the owners of the
contracting “Master” entities and other individuals who
contracted with or were employed by Masters. Dynamex referred to
the latter group as “Indirect Drivers.” Masters were required to
have at least one Indirect Driver (the owners were permitted but
not required to be drivers). Masters also had to provide
insurance for their drivers, which they could purchase through
Dynamex. Dynamex used at least 19 Masters to perform Google
Express deliveries in Massachusetts: Banana Hill Courier
Service, Braulio Vega, Elite Delivery Services Inc., Eureka
Logistics, Omega Express Courier Service, R&R Courier Service,
LLC, Rafferty & Family Enterprises, LLC, Red Line Trucking LLC,
RMB Transport, Roberto Ozuna LLC, S&B,2 Sam Courier, Soni Courier
Service LLC, TDOO Express Services Inc., Thomas Multi Services
LLC, Time Bandit Courier, Topline Courier, United Transportation

office, this policy change was prompted in part by a prior class
action lawsuit.
2
S&B was an Agent from May 6, 2015 to January 6, 2016, at
which point it entered into a new contract with Dynamex that
converted it to a Master.
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System LLC, and World Trans Inc. In total, Masters provided
Dynamex with 122 Indirect Drivers that performed Google Express
deliveries in Massachusetts during the proposed class period.
Agents were larger transportation companies that Dynamex
used when it needed additional drivers to cover excess demand
for Google Express delivery services. Agents also contracted
directly with Dynamex. Like Masters, Agents were required to
have a business license and be an incorporated company, LLC, or
special corporation. Unlike Masters, however, they needed to
have a verifiable brick-and-mortar location, a website, and more
than ten total drivers. Agents also had to perform their own
background checks, drug tests, and vehicle checks and were
solely responsible for providing insurance for their drivers.
Finally, 50% or more of Agents’ business had to come from
companies other than Dynamex. Dynamex referred to all drivers
provided by Agents as “Indirect Drivers.” Dynamex used two
Agents to perform Google Express deliveries in Massachusetts:
Famm Driving and Patriot Express Logistics LLC. In total, Agents
provided Dynamex with eight Indirect Drivers that performed
Google Express deliveries in Massachusetts during the proposed
class period.
In general, Dynamex did not require its Masters to classify
their drivers as either W-2 employees or independent
contractors. However, Elite Delivery Services Inc., Omega
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Express Courier Service, LLC, Rafferty & Family Enterprises LLC,
and Topline Courier signed a “Broker/Motor Carrier Master
Agreement” with Dynamex in 2009 which required that all drivers
either be “directly employed and paid hourly by [the Master] or
provided to [the Master] by a bona fide employment staffing
agency.”3 Dkt. No. 79-2 at 16-17, 27-28, 56-57, 171-72. A
representative from R&R Courier Service, LLC also has submitted
an affidavit stating that it employed its Indirect Drivers as W2 employees. In total, the Masters and Agents who are known to
have used W-2 employees provided Dynamex with 18 Indirect
Drivers. Meanwhile, S&B classified its Indirect Drivers as
independent contractors who filed Form 1099s with the IRS.
Ouadani also attempted to subpoena employment records from 19 of
the Masters and Agents. Only six Masters or Agents responded to
the subpoenas, and only two of those -– Eureka Logistics and
Patriot Express Logistics LLC -- produced tax forms for their
Indirect Drivers. According to the tax forms, both Eureka
Logistics and Patriot Express Logistics LLC paid their Indirect
Drivers as independent contractors. In total, the Masters and
Agents who are known to have used independent contractors
provided Dynamex with 36 Indirect Drivers. It is not clear from

A representative from Rafferty & Family Enterprises LLC
also has submitted an affidavit confirming that it employed its
Indirect Drivers as W-2 employees.
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the record whether the remaining Masters and Agents classified
their drivers as W-2 employees or independent contractors.
c.

Recruiting, Onboarding, and Orientation

Certain basic facts about the recruiting and onboarding of
Indirect Drivers are undisputed. Pursuant to its contracts with
the Masters, Dynamex performed the background checks, driving
checks, drug tests, and other onboarding tasks for Indirect
Drivers who worked for Masters. Dynamex did not perform these
tasks for Indirect Drivers who worked for Agents. Rather, under
their contracts with Dynamex, the Agents handled most onboarding
tasks and certified to Dynamex that they had been completed.
Otherwise, the parties extensively dispute the process by which
drivers came to be drivers for Google Express.
Ouadani claims that Dynamex recruited the Indirect Drivers
through internet advertisements on websites such as Craigslist
and Indeed.com. The advertisements specified that Dynamex was
looking for independent contractors with their own vehicles who
were willing to work for shift pay and no commissions. Indeed,
this is how Ouadani first learned about the opportunity to
perform Google Express deliveries. Dynamex concedes that from
March 16, 2016 to June 10, 2016 it ran such an advertisement but
insists that advertisement was placed by mistake and was an
exception to its ordinary practice. Dynamex claims that the rest
of time it only advertised for third-party companies (i.e.,
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Masters and Agents) that could provide drivers to perform
deliveries for its clients, such as Google. Dynamex also points
out that not all the Indirect Drivers approached it directly.
Some drivers, for example, were associated with Masters well
before they began driving for Google Express. In those cases,
the Masters would suggest to Dynamex the drivers they wanted to
perform Google Express deliveries, which would trigger the
onboarding process.
Ouadani also contends that when prospective drivers
contacted Dynamex about performing delivery services in response
to an advertisement, Dynamex would ask them to come into its
Wilmington office. Once there, Dynamex would have the
prospective drivers fill out paperwork and submit to a drug
test. The paperwork included a job application and consent forms
for background and driving checks. Ouadani claims Dynamex then
“assigned” prospective drivers to the Masters with whom they
would contract directly.
Dynamex disputes many of the details of how Ouadani
characterizes this process. First, it denies that the process
always followed this order. Instead, Dynamex contends that
ordinarily once a prospective driver contacted the company, it
would refer them to the Masters before completing any additional
onboarding. Second, it denies that prospective drivers filled
out a job application or that it “assigned” the drivers to
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Masters. Dynamex contends that when prospective drivers first
came to its office they were provided with a list of Masters who
might be hiring. Both the drivers and the Masters were then free
to decide whether or not to enter into an employment
relationship. If a prospective driver and a Master did choose to
associate, then the Master would send the driver back to Dynamex
for onboarding.
Regardless of how the Indirect Drivers came to Dynamex, the
SOW required that all Indirect Drivers complete an orientation
program before they could began performing Google Express
deliveries. The parties do not dispute the essential details of
the orientation program. The first part of the program was a
three to five-hour training called “Intrepid” which was designed
by Google. Intrepid covered various subjects, including how to
interact with customers, perform deliveries, and resolve
delivery issues consistent with Google’s standard operating
procedures. The Indirect Drivers completed the Intrepid training
at Dynamex’s Wilmington office. The second part of the program
was an online training called “Marshall” which also was designed
by Google and was intended to familiarize the Indirect Drivers
with the Google application they would be using to make
deliveries. The final part of the program was an on-the-road
orientation where the Indirect Drivers rode along with more
experienced drivers to get hands on experience before performing
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deliveries solo -- the more experienced driver was not always
from the same Master or Agent as the trainee driver.
As part of the onboarding process, Google would issue each
driver an email address with the extension “dynamex.courierops.com” that Google used to communicate with them. The Indirect
Drivers also were required to use a Google-approved phone and a
“Socket” scanner. Ouadani claims that Dynamex issued the
required phones and scanners to the Indirect Drivers. Dynamex
disagrees, claiming that it did not issue or lease any equipment
directly to the Indirect Drivers. Instead, the Indirect Drivers
leased the phones and scanners from their Masters or Agents, who
in turn had leased them from Dynamex, who in turn leased them
from Google.
d.

Scheduling and Deliveries

Once the Indirect Drivers had been onboarded, trained, and
supplied with the necessary equipment, they were ready to begin
making deliveries. Up until mid-August 2016, the standard Google
Express shift was four hours long. From mid-August to October
2016, shifts were between four and six hours long. Shifts were
scheduled based on Google’s anticipated need for drivers and the
availability of individual drivers. Ouadani claims that the
drivers reported their availability directly to Dynamex, and
then Dynamex scheduled their shifts. Dynamex disputes that this
was always the case. According to Dynamex, sometimes the
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Indirect Drivers would inform Dynamex of their availability, but
other times they would inform their Masters or Agents, who in
turn would inform Dynamex. Dynamex employees would then input
the drivers’ availability into the Google application and the
drivers would be notified of their assigned shifts.
Neither Google nor Dynamex required the Indirect Drivers to
work a certain number of shifts per week. But the shifts were
for pre-determined time slots and, once Indirect Drivers were
assigned a shift, they were required to work that shift. If a
driver was unable to work an assigned shift, they were supposed
to let their Master or Agent know. The Master or Agent would
then inform Dynamex. Conversely, if Dynamex needed additional
drivers to cover shifts, it would reach out to the Masters and
Agents to see if they had any available drivers. Under the SOW,
Google charged Dynamex a fee for shifts that went uncovered and,
if a shift went uncovered because the assigned driver did not
show, Dynamex would pass that charge on to the driver’s Master
or Agent. S&B, for example, would then pass these fees on to the
drivers themselves by deducting from their pay checks. But the
parties dispute whether the Masters and Agents always would
charge their drivers for missed shifts.
For each shift, drivers were required to report to an
assigned starting location 15 minutes before the shift started.
The starting location was selected and communicated to the
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drivers by Google. Drivers were required to login to the Google
Express application five minutes before their shift started, but
they could only login if they were already at their starting
location. Once a shift started, drivers were required to
complete deliveries in the order they were assigned by Google
and in accordance with the routes provided by Google. Although
drivers primarily took directions from Google during their
shifts, they would sometimes receive additional instructions
from Dynamex dispatchers. Dynamex claims, however, that when
this happened its dispatchers were only relaying instructions
that came from Google.
Dynamex also periodically would send emails to its Masters
and Agents asking that they remind their drivers about Google’s
standard operating procedures for making deliveries and/or
notify them of changes to those procedures. Google tracked the
drivers’ performance through its application and would charge
Dynamex fees when the drivers did not follow the specified
procedures (e.g., showing up late for a shift, making deliveries
out of order). Dynamex would then pass these fees on to the
drivers’ Masters or Agents via deductions from their per shift
payments. Again, the parties dispute whether these charges were
always passed on to the drivers by their Masters or Agents. The
parties also dispute whether Dynamex had the authority to
terminate drivers if they failed to perform adequately. Dynamex
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insists that only Google or the Masters and Agents could
terminate a driver.
While completing Google Express deliveries, drivers were
required to wear Google-approved apparel. Ouadani claims that
this was a Dynamex requirement, while Dynamex claims it was a
Google requirement. What constituted Google-approved apparel
meant different things at different times. From June 2014
through at least February 2016, Google required that Indirect
Drivers wear uniforms and badges bearing its own logo. And, from
at least April 2016 to October 2016, it required uniforms and
badges with Dynamex’s logo. Drivers were also required
periodically to complete supplemental trainings on Google
standard operating procedures. These trainings were designed by
Google, and Dynamex would notify the drivers of the trainings.
As with the uniform policy, the parties disagree about whether
Dynamex or Google required the supplemental trainings.
e.

Payment and Deductions

Dynamex did not directly make payments to the Indirect
Drivers. Instead, Dynamex made payments to the Masters and
Agents for the shifts their Indirect Drivers worked. These
payments were for a per shift amount less any applicable
deductions. Dynamex paid a fixed amount per shift regardless of
the time needed to complete the shift or the miles driven. This
per shift rate was negotiated between Dynamex and the individual
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Masters and Agents. Dynamex deducted from these amounts various
costs for services and equipment, such as background checks,
insurance, uniforms, scanners, and radios. Dynamex also took
deductions when a driver missed a shift, logged in late for a
shift, or when a Google Express customer complained about
missing or damaged goods (i.e., customer “cargo claims”). All of
this information was tracked in Dynamex’s proprietary software
system, Dynamex Enterprise Courier Software (“DECS”).
The parties dispute how the Masters and Agents in turn paid
their drivers. There is limited evidence in the record on this
score. Ouadani contends that the Masters and Agents simply
passed through the payments (and deductions) to the Indirect
Drivers. He points to several pieces of evidence to support this
theory. One of the forms that Indirect Drivers signed as part of
their onboarding was the Indirect Driver/Helper Deduction
Agreement (the “Deduction Agreement”). Each Deduction Agreement
listed the various deductions Dynamex would take per shift and
it was signed by Dynamex, a representative of the Master or
Agent, and the Indirect Driver. Also, the “settlement
statements” generated by Dynamex’s DECS system and sent to the
Masters and Agents reflected the “Total payment to driver,” not
the payment to the Master or Agent. And S&B simply passed the
per shift payments and deductions on to its Indirect Drivers,
albeit after taking a 17.5% cut for itself.
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Dynamex counters that at least some Masters and Agents paid
their Indirect Drivers as W-2 employees, but presents no
evidence on whether the employees were paid hourly or on a shift
basis.
PROCEDURAL HISTORY
Ouadani filed this proposed class action on October 11,
2016. His complaint asserts class claims for misclassification
under Mass. Gen. Laws ch. 149 § 148B (the “Massachusetts
Independent Contractor Statute”) (Count I), improper deductions
under Mass. Gen. Laws ch. 149 § 148 (the “Massachusetts Wage
Act”) (Count II), minimum wage violations under Mass. Gen. Laws.
ch. 151, § 1A (the “Massachusetts Minimum Wage Law”) (Count
III), and unjust enrichment (Count IV). It also asserts an
individual claim for retaliation (Count V) and a collective
action claim for minimum wage violations under the Fair Labor
Standards Act (Count VI). Dynamex moved to dismiss and/or compel
arbitration of all claims on February 9, 2017. The Court denied
Dynamex’s motion on May 10, 2017. Dynamex then appealed the
Court’s decision, and the case was stayed while the appeal was
pending. On November 21, 2017, the First Circuit denied
Dynamex’s appeal. The Court subsequently lifted the stay and
discovery on liability proceeded between the parties.

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On October 14, 2018, Ouadani filed a motion for class
certification as to Counts I and II. He seeks a class with the
following definition:
[A]ll individuals categorized by Dynamex as “indirect
drivers” who performed Google Express deliveries
between July 16, 2014 and October 14, 2016.
On the same day, Ouadani also filed a motion for summary
judgment as to Count I only. Defendants opposed both motions.
The Court held a hearing on Ouadani’s class certification and
summary judgment motions on January 29, 2019.
MOTION FOR CLASS CERTIFICATION
I.

Legal Standard
Federal Rule of Civil Procedure 23(a) imposes four

“threshold requirements” applicable to all class actions:
(1) the class is so numerous that joinder of all
members is impracticable;
(2) there are questions of law or fact common to the
class;
(3) the claims or defenses of the representative
parties are typical of the claims or defenses of the
class; and
(4) the representative parties will fairly and
adequately protect the interests of the class.
Fed. R. Civ. P. 23(a); Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 613 (1997).
In addition to the requirements of Rule 23(a), the party
seeking class certification must establish the elements of Rule
23(b)(1), (2), or (3). Amchem, 521 U.S. at 614. Ouadani seeks
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certification under Rule 23(b)(3), which permits a class action
when common questions “predominate over any questions affecting
only individual members,” and class resolution is “superior to
other available methods for fairly and efficiently adjudicating
the controversy.” Fed. R. Civ. P. 23(b)(3). Matters “pertinent”
to evaluating predominance and superiority include:
(A) the class members' interests in individually
controlling the prosecution or defense of separate
actions;
(B) the extent and nature of any litigation concerning
the controversy already begun by or against class
members;
(C) the desirability or undesirability of
concentrating the litigation of the claims in the
particular forum; and
(D) the likely difficulties in managing a class
action.
Fed. R. Civ. P. 23(b)(3).
Ouadani has the initial burden of showing that the proposed
class satisfies the Rule 23 requirements. In re Nexium Antitrust
Litig., 777 F.3d 9, 27 (1st Cir. 2015). If factual premises are
disputed at the class certification stage, the Court may “‘probe
behind the pleadings’ to ‘formulate some prediction as to how
specific issues will play out’ in order to assess whether the
proposed class meets the legal requirements for certification.”
In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522
F.3d 6, 17 (1st Cir. 2008) (quoting Gen. Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 160 (1982); Waste Mgmt. Holdings, Inc. v.
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Mowbray, 208 F.3d 288, 298 (1st Cir. 2000)). A class should be
certified only if “the trial court is satisfied, after a
rigorous analysis,” that the Rule 23 requirements have been met.
Comcast Corp. v. Behrend, 569 U.S. 27, 33-34 (2013).
II.

Analysis
a.

Numerosity

Rule 23(a)(1)’s requirement that the proposed class be “so
numerous that joinder . . . is impracticable” is a “low
threshold” that typically can be satisfied with a showing that
the class is comprised of at least 40 members. See GarciaRubiera v. Calderon, 570 F.3d 443, 460 (1st Cir. 2009). The
parties agree there were 130 drivers whom Dynamex classified as
Indirect Drivers and who performed Google Express deliveries in
Massachusetts during the relevant period. Even if the Court were
to exclude the Indirect Drivers supplied by Agents and those who
were W-2 employees of Masters, the numerosity requirement still
would be satisfied. Only 13 of the 130 Indirect Drivers in the
proposed class were provided by Agents.4 And, so far, only 18 of
the 122 Indirect Drivers supplied by Masters have been
identified as potential W-2 employees. That still leaves 99

This number includes the eight Indirect Drivers provided by
Famm Driving and Patriot Express Logistics LLC and the five
Indirect Drivers who worked for S&B between May 6, 2015 to
January 6, 2016 when it was an Agent, not a Master. See Dkt. No.
79-1 at 3.
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Indirect Drivers as putative class members, which is comfortably
above the 40-class member threshold. Further, the Court finds
that joinder of all the proposed class members would be
impracticable. Thus, the proposed class satisfies Rule
23(a)(1)’s numerosity requirement.
b.

Commonality

Rule 23(a)(2) requires the identification of an issue that
is by its nature “capable of classwide resolution -- which means
that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one
stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011). The class must not only raise common questions, but
those questions must also generate common answers that help
resolve the litigation. Id. However, a single common issue is
sufficient for the purposes of Rule 23(a)(2). Id. at 359.
Ouadani argues that the common question that satisfies Rule
23(a)(2) is whether Dynamex misclassified its Indirect Drivers
as independent contractors rather than employees. He points to
several cases where courts in this district have found that a
lawsuit challenging a company-wide practice or policy satisfied
Rule 23(a)(2). See Garcia v. E.J. Amusements of N.H., Inc., 98
F. Supp. 3d 277, 286-88 (D. Mass. 2015) (Saris, J.) (finding
defendant’s payroll policies that applied to all putative class
members raised common questions of law and fact); George v.
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Nat’l Water Main Cleaning Co., 286 F.R.D. 168, 175 (D. Mass.
2012) (Casper, J.) (finding allegation that defendants
misclassified putative class members as “laborers” raised
numerous common questions of law and fact); Overka v. Am.
Airlines, Inc., 265 F.R.D. 14, 18 (D. Mass. 2010) (Young, J.)
(finding defendants’ nationwide policy of charging fees to
customers that allegedly deprived its employees of tips raised
common questions of law and fact). Further, Ouadani argues that
the question of whether the indirect drivers qualify as
employees of Dynamex under the Massachusetts Independent
Contractor Statute can be answered with common proof because he
has set forth evidence of Dynamex’s policies and practices
through which it exercised control over all of the Indirect
Drivers.
The Court agrees with Ouadani that the proposed class
satisfies the commonality requirement of Rule 23(a)(2). Ouadani
is only seeking class certification for two of his claims -misclassification (Count I) and improper deductions (Count II)
under Massachusetts law. Whether or not the Indirect Drivers
were properly classified as independent contractors rather than
employees is a central question to both claims. Ouadani argues
that the Indirect Drivers were employees because Dynamex had
actual control over them. To this end, he points to evidence
that the Indirect Drivers were subject to, inter alia, the same
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orientation program, shift scheduling procedures, and uniform
requirements. In DaSilva v. Border Transfer of MA, Inc., 296 F.
Supp. 3d 389, 401 (D. Mass. 2017), this Court held that those
same types of evidence were sufficient to show actual control
under the Massachusetts Independent Contractor Statute, at least
for the purposes of Rule 23(a)(2). See also Vargas v. Spirit
Delivery & Distribution Servs., Inc., 245 F. Supp. 3d 268, 287
(D. Mass. 2017) (finding that defendant’s control over delivery
drivers classified as independent contractors could be
determined by reference to evidence of its common policies and
practices). The Court sees no reason to reach a different
conclusion here.
Indeed, Dynamex’s responses to these arguments are
unavailing. It principally relies on Magalhaes v. Lowe's Home
Centers, Inc., in which another court in this district declined
to certify a class of independent contractors who worked for
Lowe’s as installers of flooring, millwork, cabinets, and
countertops. No. CIV.A. 13-10666-DJC, 2014 WL 907675, at *9 (D.
Mass. Mar. 10, 2014) (Casper, J.). But in reaching its decision,
the Magalhaes court specifically distinguished contrary cases
involving delivery drivers, reasoning that the key difference
between the Lowe’s installers and delivery drivers was that the
latter group performed only a single service and so operated
with less autonomy from their putative employer. Id. at *5-6.
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For this reason, Magalhaes is inapplicable here given that the
Indirect Drivers were delivery drivers that performed a single
service for Dynamex.
Dynamex’s other arguments, meanwhile, focus on the
differences between the Indirect Drivers and the potential
individualized questions that those differences raise. Yet
Dynamex overstates its case by arguing that no common fact
exists amongst the Indirect Drivers. Rather, Dynamex concedes
the existence of several policies and practices that were
applicable to all the Indirect Drivers. The evidence of
Dynamex’s common policies and practices may or may not
ultimately establish that the Indirect Drivers were its
employees, but this type of evidence is sufficient for
determining liability on a class-wide basis. See DaSilva, 296 F.
Supp. 3d at 401 (“[T]he question at this stage is whether the
level of actual control can be determined by common evidence . .
. .”); see also Vargas, 245 F. Supp. 3d at 285 (certifying class
but declining to grant summary judgment in favor of plaintiffs
as to employee status because there were material disputes of
fact as to defendant’s degree of control). In any case,
Dynamex’s arguments concerning the prevalence of individualized
questions are more applicable to Rule 23(b(3)’s predominance
requirement, which the Court addresses in further detail below.

23

Accordingly, the Court finds that the proposed class
satisfies Rule 23(a)(2)’s commonality requirement.
c.

Typicality

“Typicality requires that the class representative's
‘injuries arise from the same events or course of conduct as do
the injuries of the class,’ but his claims need not be
‘identical to those of absent class members.’” Henderson v. Bank
of N.Y. Mellon, N.A., 332 F. Supp. 3d 419, 427 (D. Mass. 2018)
(quoting In re Credit Suisse–AOL Sec. Litig., 253 F.R.D. 17, 23
(D. Mass. 2008)). This requirement is “not highly demanding
because the claims only need to share the same essential
characteristics, and need not be identical.” Payne v. Goodyear
Tire & Rubber Co., 216 F.R.D. 21, 24-25 (D. Mass 2003); see also
DaSilva, 296 F. Supp. 3d at 404 (acknowledging Rule 23(a)(3)’s
“permissive standards”). The commonality inquiry under Rule
23(a)(2) and the typicality inquiry under Rule 23(a)(3) are
closely related and “tend to merge.” Falcon, 457 U.S. at 151
n.13. Further, Rule 23(a)(3) tolerates even significant
differences between the named plaintiff and the proposed class
members as long as the named plaintiff’s experience is
“reasonably coextensive” with the experiences of the rest of the
class. See DaSilva, 296 F. Supp. 3d at 405.
The parties’ arguments concerning typicality are derivative
of their arguments concerning commonality. Dynamex highlights
24

the differences between Ouadani and the other Indirect Drivers.
Ouadani counters that he is typical of the other Indirect
Drivers because his claims arise from same Dynamex policies and
practices that applied to the other Indirect Drivers. The Court
agrees with Ouadani for the same reasons it agrees with him on
commonality. Even though there may be some differences between
Ouadani and the putative class members, what matters is that
they are bound together by a common legal theory. Id. Dynamex
also complains about the sufficiency of Ouadani’s evidence,
pointing out that he has not provided any testimony from other
proposed class members to demonstrate that his experience was
typical of theirs. But this is not necessary.5 Ouadani has
provided evidence from Dynamex of its policies and practices as
they applied to all Indirect Drivers, and he has provided his
own testimony of how those policies and practices were in fact
applied to him. This is sufficient for the purposes of Rule
23(a)(3). See McLaughlin v. Liberty Mut. Ins. Co., 224 F.R.D.
304, 310 (D. Mass. 2004) (finding typicality requirement

The two cases Dynamex cites to suggest otherwise were FLSA
conditional certification cases, and the only evidence in the
record at the time of the motion for conditional certification
were the affidavits of the named plaintiffs. See Rios v. Current
Carrier Corp., No. CIV.A. 14-10247-GAO, 2015 WL 1443058, at *2
(D. Mass. Mar. 30, 2015); O'Donnell v. Robert Half Int'l, Inc.,
429 F. Supp. 2d 246, 250 (D. Mass. 2006). Ouadani has provided
far more robust evidence of Dynamex’s policies and practices
than plaintiffs did in those FLSA cases.
5

25

satisfied where class claims arose from “the same policies and
wrongful conduct of the Defendant, and [we]re based on the same
legal theories”). Thus, the Court finds that the proposed class
satisfies Rule 23(a)(3)’s typicality requirement.
d.

Adequacy

To satisfy Rule 23(a)(4)’s adequacy requirement, “[t]he
moving party must show first that the interests of the
representative party will not conflict with the interests of any
of the class members, and second, that counsel chosen by the
representative party is qualified, experienced and able to
vigorously conduct the proposed litigation.” Andrews v. Bechtel
Power Corp., 780 F.2d 124, 130 (1st Cir. 1985). As a general
matter, there is no conflict where the “named plaintiff[] and
the putative class members share an interest in recovering wages
lost as a result of misclassification.” DaSilva, 296 F. Supp. 3d
at 405. At this stage, there is no reason to believe that
Ouadani’s interests will conflict those of the Indirect Drivers,
and any Indirect Drivers who happen to disagree with Ouadani’s
decision to sue Dynamex are free to opt out of the class. See
id. Ouadani’s chosen counsel, meanwhile, is more than qualified
to prosecute this litigation on behalf of the proposed class.
See Dkt. No. 72-1 (affidavit of lead counsel, Stephen Churchill,
detailing extensive experience in employment litigation, which
includes the prosecution of similar class action cases). For its
26

part, Dynamex does not challenge the adequacy of either Ouadani
or his counsel to represent the proposed class. Accordingly, the
Court finds that Rule 23(a)(4)’s adequacy requirement has been
met.
e.

Predominance

“The Rule 23(b)(3) predominance inquiry tests whether
proposed classes are sufficiently cohesive to warrant
adjudication by representation.” Amchem, 521 U.S. at 623. As
part of this inquiry, courts must “give careful scrutiny to the
relation between common and individual questions in a case.”
Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016).
While the predominance requirement is “far more demanding” than
Rule 23(a)(2)’s commonality requirement, it nevertheless assumes
that some individual questions will exist. Amchem, 521 U.S. at
624. “When ‘one or more of the central issues in the action are
common to the class and can be said to predominate, the action
may be considered proper under Rule 23(b)(3) even though other
important matters will have to be tried separately, such as
damages or some affirmative defenses peculiar to some individual
class members.’” Bouaphakeo, 136 S. Ct. at 1045 (quoting 7AA C.
Wright, A. Miller, & M. Kane, Federal Practice and Procedure §
1778, at 123–24 (3d ed. 2005)).
The predominance inquiry is where the rubber meets the road
for Ouadani’s class certification motion. Dynamex raises several
27

important issues regarding the proper scope of the proposed
class.
i. Liability Issues
Dynamex first focuses on what Ouadani needs to prove in
order to establish liability under the Massachusetts Independent
Contractor Statute. As outlined in more detail below, Dynamex
must make two showings to avoid liability for misclassification
of the Indirect Drivers as independent contractors. First, under
Prong A of the statute’s control test, Dynamex must show that
the Indirect Contractors were free from its control both under
contract and in fact. Mass. Gen. Laws ch. 149, § 148B(a)(1).
Second, under Prong C, it must show that the Indirect Drivers
were “customarily engaged in an independently established trade,
occupation, profession or business of the same nature as that
involved in the service performed.” Id. § 148B(a)(3). Dynamex
contends that both showings require individualized proof, which
prevents Ouadani from satisfying Rule 23(b)(3).
With respect to Prong A, Dynamex argues that individual
questions predominate because the degree of actual control that
Dynamex exercised over the Indirect Drivers varied from driver
to driver. Dynamex argues that the Indirect Drivers did not have
similar experiences because they worked for 21 different Masters
and Agents. In particular, Dynamex observes (1) drivers were
recruited, onboarded, and orientated in different ways;
28

(2) drivers were subject to different uniform requirements; and
(3) not all drivers drove their own vehicles. The first point
has some merit because there does appear to have been
significant variance in how Indirect Drivers were recruited,
onboarded, and orientated. But this variance is mostly accounted
for by the differences between Masters and Agents. Agents
recruited their own drivers and, under their contracts with
Dynamex, they were solely responsible for onboarding those
drivers. The Indirect Drivers supplied by Agents were also
different in that Dynamex only used them to cover “overages”
when Google’s demand for drivers exceeded the number of drivers
provided by Masters. This was reflected in the fact that Agents
were required to have more than 50% of their business come from
clients other than Dynamex. All of this suggests that Dynamex
exercised a lesser degree of control over the Indirect Drivers
provided by Agents. These issues can be addressed, however, by
simply excluding that subset of drivers from the class.
Dynamex’s other two points are less persuasive. It is true
that at different times Indirect Drivers were required to wear
different uniforms and badges: at the beginning of the class
period they wore Google-branded uniforms and badges and at the
end they wore Dynamex-branded ones. For the purposes of
analyzing control, however, the key fact is that at all relevant
times the Indirect Drivers were subject to a uniform
29

requirement. Differences in the exact uniforms and badges worn
by the Indirect Drivers do not raise individualized issues
serious enough to defeat class certification. Meanwhile, Dynamex
does not explain why the fact that some Indirect Drivers used
their own vehicles while others used vehicles provided by the
Masters and Agents is relevant to the inquiry into Dynamex’s
degree of control over the Indirect Drivers.6 And Dynamex
concedes elsewhere in its briefing that most Indirect Drivers
used their own vehicles. That a small minority of the putative
class drove vehicles provided by their Masters or Agents is not
enough for the Court to conclude that individual issues
predominate.
With respect to Prong C, Dynamex argues that the factfinder
will need to determine whether each Indirect Driver actually
engaged in independent business, which will also require
individualized proof. It is true that this may form part of the
Prong C analysis. See DaSilva v. Border Transfer of MA, Inc.,
377 F. Supp. 3d 74, 96 (D. Mass. 2019) (determining that the

If anything, the drivers that did not use their own
vehicles to make deliveries are different from the other
putative class members because they cannot claim damages for
mileage-related expenses. But individualized damages questions
alone are not a bar to class certification. See Smilow v. Sw.
Bell Mobile Sys., Inc., 323 F.3d 32, 40 (1st Cir. 2003) (“Where,
as here, common questions predominate regarding liability, then
courts generally find the predominance requirement to be
satisfied even if individual damages issues remain.”).
6

30

applicable standard is unclear but both “[t]he nature of the
services performed and the actual and customary conditions of
employment of the workers are relevant to the [Prong C]
inquiry”). But at the class certification stage the Court is
entitled to “probe behind the pleadings” so as to make
predictions about how the litigation is likely to unfold. In re
New Motor Vehicles, 522 F.3d at 17 (quoting Falcon, 457 U.S. at
160). There are at least two reasons why the Court finds it
unlikely that the Prong C inquiry will cause individual issues
to predominate over common ones.
First, Ouadani only needs to prevail on one prong of the
control test to establish that the Indirect Drivers were
employees of Dynamex. So far, he has focused his efforts on
Prong A and, in particular, the question of actual control as
evidenced by Dynamex’s common policies and practices. In his
view, this is the beginning and end of the analysis of the
Indirect Drivers’ employment status and there is no need to
reach Prong C. But even if the parties do end up contesting
Prong C at trial, the Court expects that Prong A will remain the
focus. Second, Dynamex asserts Prong C arguments that are based
on common proof. For example, Google Express shifts lasted four
to six hours and there was no requirement that drivers work a
certain number of shifts per week, meaning they could control
their hours and budget time for other clients or jobs. Dynamex
31

also contends that this is borne out by “random sampling” of its
shift data for the Indirect Drivers, which shows that many
drivers performed Google Express deliveries less than full time.
These arguments suggest that the Prong C inquiry also may turn
on common proof.
ii. Damages Issues
Dynamex also gains some traction arguing that the
calculation of damages in this case will raise too many
individualized issues. While ordinarily individual damages
questions do not defeat class certification, see Smilow, 323
F.3d at 40; DaSilva, 296 F. Supp. 3d at 406, Dynamex’s business
model of hiring Indirect Drivers through Masters and Agents
threatens to create especially complex damages issues. Dynamex
paid the Masters and Agents, not the Indirect Drivers. How the
Masters and Agents in turn paid their Indirect Drivers is
intensely disputed but there is little in the way of direct
evidence to support either parties’ position. Calculating
damages, then, may require the factfinder to examine the
compensation schemes employed by each individual Master and
Agent. This also potentially raises individualized issues in
determining liability. If a Master or Agent did not pass on
deductions to its drivers or compensated them for mileagerelated expenses, then those drivers might not have any claim at
all.
32

Dynamex argues that there is no common proof that that will
allow the factfinder to determine what deductions were taken
from the Indirect Drivers’ pay and what business expenses were
reimbursed because the compensation schemes will vary between
Masters and Agents. In similar circumstances, courts in this
district have declined to certify classes that include so-called
“secondary drivers” who worked directly for companies other than
the defendant. See Martins v. 3PD, Inc., No. CIV.A. 11-11313DPW, 2013 WL 1320454, at *8 (D. Mass. Mar. 28, 2013) (certifying
class for misclassification claim that included secondary
drivers but declining to certify class for improper deductions
claim due to complex damages issues created by secondary
drivers); Martins v. 3PD Inc., No. CIV.A. 11-11313-DPW, 2014 WL
1271761, at *11 (D. Mass. Mar. 27, 2014) (amending prior class
certification ruling and re-defining class to exclude secondary
drivers); see also DaSilva, 296 F. Supp. 3d at 406 (defining
class to exclude secondary drivers); Vargas, 245 F. Supp. 3d at
285 (same). But Ouadani contends this case is different. He asks
the Court to draw the inference that the Masters and Agents
simply passed through Dynamex’s deductions to their drivers and
did not reimburse them for business expenses such as mileage. In
his view, Dynamex’s two-tiered business model served no
practical purpose other than to shift potential wage and hour
liability to the Masters and Agents. If the Court draws the
33

requested inference, then class damages can be calculated using
data from Dynamex’s DECS system (i.e., common proof) which
tracked shifts, deductions, and miles for the individual
drivers.
There is compelling evidence to support this inference.
First, Dynamex’s corporate representative conceded at his
deposition that the company moved away from contracting directly
with drivers in response to a prior class action lawsuit.
Second, Dynamex had the Indirect Drivers sign Deduction
Agreements in which they purportedly agreed to the deductions
Dynamex and/or the Masters and Agents would take from their pay.
Third, the settlement statements generated by Dynamex and sent
to the Masters and Agents for the individual drivers recorded
the “Total payment to driver.” Fourth, S&B in fact did pass
through Dynamex’s payments and deductions to Ouadani (after
taking a 17.5% cut for itself). S&B’s corporate representative
also testified at his deposition that many of its drivers were
referred to it by Dynamex, which further suggests that Dynamex
not the Masters or Agents decided which drivers would perform
Google Express deliveries. Fifth, there is limited evidence in
the record concerning the function of the Masters and Agents
other than that they made payments to drivers. Rather, Google
and Dynamex appear to have handled most of the day-to-day
management of the Indirect Drivers.
34

In response, Dynamex points to the fact that some of the
Masters paid their drivers as W-2 employees. This is a fair
point. Because W-2 employees are entitled to certain employment
benefits and are subject to tax withholding, it is unlikely that
these Masters were simply passing through payments from Dynamex
to the Indirect Drivers. While Dynamex has not offered any
evidence of how exactly the Masters compensated their W-2
employees (i.e., an hourly rate vs. salary), the Court agrees
that calculating their damages will likely require
individualized proof. Moreover, it is not clear to the Court
that Dynamex can even be held liable for misclassifying Indirect
Drivers as independent contractors if they were in fact
classified by their Masters as employees. But these issues can
be avoided by excluding all W-2 employees from the class. For
the remaining Indirect Drivers, however, Dynamex merely
speculates that their Masters and Agents may have used different
compensation schemes. This is not enough to overcome the
inference suggested by Ouadani and supported by the evidence
that is actually in the record.7

The Court recognizes that the parties have not yet
conducted discovery on damages. If that process reveals the
Masters and Agents employed more complicated and varied
compensation schemes than the evidence currently suggests,
Dynamex of course is free to move to decertify the class. See In
re Sonus Networks, Inc. Sec. Litig., 229 F.R.D. 339, 348 (D.
Mass. 2005) (“[T]he court may decertify a class at anytime
before final judgment.”).
7

35

Therefore, the Court concludes that subject to the
modifications described above –- the exclusion of the Indirect
Drivers who (1) worked for Agents and (2) were W-2 employees of
Masters –- the proposed class satisfies Rule 23(b)(3)’s
predominance requirement.
f.

Superiority

Under Rule 23(b)(3), the Court also must be satisfied that
“a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.” The
superiority inquiry is closely related to the predominance
inquiry, see Amchem, 521 U.S. at 615-16, and Dynamex’s arguments
concerning superiority mostly re-hash those it made regarding
predominance. For largely the same reasons, the Court does not
find these arguments persuasive. Rather, the Court agrees with
Ouadani that “that efficiency and the policy considerations
unique to the employment context make class adjudication
superior.” DaSilva, 296 F. Supp. 3d at 406. The Court is
satisfied that Rule 23(b)(3)’s superiority requirement is
satisfied.
g.

Ascertainability

In addition to the textual requirements of Rule 23, the
First Circuit adds an ascertainability requirement to the class
certification analysis. “[T]he definition of the class must be
‘definite,’ that is, the standards must allow the class members
36

to be ascertainable.” In re Nexium, 777 F.3d at 19. The members
of the class are ascertainable if the class definition uses
“objective criteri[a].” See Matamoros v. Starbucks Corp., 699
F.3d 129, 139 (1st Cir. 2012). The parties do not contest this
issue and the Court sees no reason why the class members are not
ascertainable here. Indeed, the parties agree which Google
Express drivers fall within the class as proposed by Ouadani.
And the Court’s modifications to the proposed class do not
impact ascertainability. Whether the Indirect Drivers worked for
Masters or Agents and whether they were employed as W-2
employees or independent contractors are both objective
criteria. Thus, the Court finds that the class satisfies the
First Circuit’s ascertainability requirement.
MOTION FOR SUMMARY JUDGMENT
I.

Legal Framework
a. Standard of Review
Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute
of fact is considered genuine if “a reasonable jury, drawing
favorable inferences, could resolve it in favor of the nonmoving
party.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1,
2 (1st Cir. 1999) (quotation omitted). “A fact is material if it
has the potential of determining the outcome of the litigation.”
37

Patco Constr. Co. v. People’s United Bank, 684 F.3d 197, 207
(1st Cir. 2012) (quotation omitted). The burden is on the party
moving for summary judgment to establish that there are no
genuine disputes of material fact. Carmona v. Toledo, 215 F.3d
124, 132 (1st Cir. 2000). Critically, the Court must view the
entire record in the light most favorable to the nonmoving party
and draw all reasonable inferences in its favor. Farmers Ins.
Exch. v. RNK, Inc., 632 F.3d 777, 779-80 (1st Cir. 2011).
b. Massachusetts Wage Act
The Massachusetts Wage Act “requires prompt and full
payment of wages due.” Camara v. Attorney Gen., 941 N.E.2d 1118,
1121 (Mass. 2011). To receive protection under the Wage Act, an
individual must “provide services to an employer as an employee
(rather than as an independent contractor).” Sebago v. Bos. Cab
Dispatch, Inc., 28 N.E.3d 1139, 1146 (Mass. 2015) (quoting
Somers v. Converged Access, Inc., 911 N.E.2d 739, 748 (Mass.
2009)). The Massachusetts Independent Contractor Statute governs
whether an individual qualifies as an employee or an independent
contractor for purposes of the Massachusetts Wage Act:
[A]n individual performing any service, except as
authorized under this chapter, shall be considered to
be an employee ... unless:
(1) the individual is free from control and
direction in connection with the performance of
the service, both under his contract for the
performance of service and in fact; and

38

(2) the service is performed outside the usual
course of the business of the employer; and,
(3) the individual is customarily engaged in an
independently established trade, occupation,
profession or business of the same nature as that
involved in the service performed.
Mass. Gen. Laws ch. 149, § 148B(a); Chambers v. RDI Logistics,
Inc., 65 N.E.3d 1, 7 (Mass. 2016). The statute presumes that a
worker is an employee and requires the employer to satisfy all
three prongs by a preponderance of the evidence to show that the
worker is an independent contractor instead. See Chambers, 65
N.E.3d at 7-8; Somers, 911 N.E.2d at 747. The three prongs are
referred to as Prongs A, B, and C (or sometimes Prongs 1, 2, and
3) in the caselaw. The statute aims “to protect workers by
classifying them as employees, and thereby grant them the
benefits and rights of employment, where the circumstances
indicate that they are, in fact, employees.” Sebago, 28 N.E.3d
at 1146 (quoting Depianti v. Jan-Pro Franchising Int'l, Inc.,
990 N.E.2d 1054, 1066 (Mass. 2013)). Courts interpret the
statute in a manner consistent with this purpose. Id.
The First Circuit has held that Prong B is preempted by the
Federal Aviation Administration Authorization Act of 1994
(“FAAAA”) as applied to entities such as Dynamex that arrange
product deliveries. See Mass. Delivery Ass'n v. Healey, 821 F.3d
187, 189 (1st Cir. 2016); Schwann v. FedEx Ground Package Sys.,
Inc., 813 F.3d 429, 442 (1st Cir. 2016). Thus, for Dynamex to
39

defeat the presumption of employment, it must prevail on both
Prongs A and C. Conversely, Ouadani can prevail by showing that
either Prong A or C is not satisfied. See Sebago, 28 N.E.3d at
1146 (“The failure to satisfy any prong will result in the
individual's classification as an employee.”).
To satisfy Prong A, Dynamex must show that the worker “is
free from control and direction in connection with the
performance of the service, both under his contract for the
performance of service and in fact.” Mass Gen. Laws ch. 149, §
148B(a)(1) (emphasis added). The worker need not “be entirely
free from direction and control from outside forces” to qualify
as an independent contractor. Athol Daily News v. Bd. of Review
of Div. of Emp't & Training, 786 N.E.2d 365, 371 (Mass. 2003)
(internal quotation omitted). Instead, the Prong A analysis
focuses on “the right to control the details of the performance
and the freedom from supervision ‘not only as to the result to
be accomplished but also as to the means and methods that are to
be utilized in the performance of the work.’” Id. (citation
omitted) (quoting Maniscalco v. Dir. of Div. of Emp't Sec., 97
N.E.2d 639, 640 (Mass. 1951)). “Prong A itself contains a
conjunctive test under which the plaintiffs need only prevail on
one branch.” DaSilva, 296 F. Supp. 3d at 400. Accordingly, “a
company asserting that a worker is an independent contractor

40

must show that the individual was free from its control both as
a matter of contract and as a matter of fact.” Id.
II.

Analysis
Ouadani contends that Dynamex cannot bear its burden on

either part of the Prong A inquiry and, therefore, he is
entitled to summary judgment on Count I of his complaint for
misclassification of the Indirect Drivers.
The analysis of contractual control is complicated by the
fact that the Indirect Drivers did not contract directly with
Dynamex. Ouadani tries to argue that the SOW and Amended SOW
between Dynamex and Google, which required that Dynamex make
sure that the Indirect Drivers possess certain qualification and
comply with Google’s standard operating procedures, is proof of
contractual control. But these are not the relevant contracts.
See Mass. Gen. Laws ch. 149, § 148B(a) (“the individual is free
from control and direction . . . under his contract for the
performance of service” (emphasis added)). While the terms of
SOW and Amended SOW may support an inference that Dynamex
exercised actual control over the Indirect Drivers, they do not
establish that Dynamex had contractual control. The relevant
contracts for this analysis are (1) the Indirect Drivers’
contracts with their respective Masters and (2) the Masters’
contracts with Dynamex. Theoretically, these could be read
together to determine the degree of contractual control that was
41

retained by Dynamex.8 Yet Ouadani does not undertake any such
analysis. Nor are all these contracts even in the summary
judgment record.9 Thus, the Court cannot conclude as a matter of
law that Dynamex had contractual control over the Indirect
Drivers.
Ouadani identifies various indicia of control that he
believes establish that Dynamex was in fact an employer of the
Indirect Drivers:
1.

Dynamex recruited the Indirect Drivers to perform
Google Express deliveries.

2.

Dynamex ran background checks and drug tests on the
Indirect Drivers.

3.

Dynamex required the Indirect Drivers to go through
orientation and training programs.

4.

Dynamex issued equipment to the Indirect Drivers.

5.

Dynamex required the Indirect Drivers to wear badges
and uniforms and to maintain a “professional”
appearance.

6.

Dynamex assigned the Indirect Drivers shifts for
specific times and durations.

In light of the Court’s decision to exclude from the class
the Indirect Drivers who contracted with Agents, it does not
address in this portion of the opinion issues specific to those
drivers.
9
The contracts between Dynamex and the Masters and Agents
are in the record but not those between Masters and Agents and
their Indirect Drivers. The only contract in the record to which
a driver was a party is Ouadani’s contract with S&B. Dynamex
points out that these contracts mostly divest it of control over
Ouadani.
8

42

7.

Dynamex required the Indirect Drivers to report to
their assigned starting location 15 minutes before
their shift.

8.

Dynamex did not allow the Indirect Drivers to log into
the Google Express application until 5 minutes before
their shift or if they were not at their assigned
staging location.

9.

Dynamex required the Indirect Drivers to perform
deliveries in a specific order using specific routes.

10.

Dynamex directed the Indirect Drivers as to how they
were required to pick up parcels from particular
stores.

11.

Dynamex made deductions from the Indirect Drivers’
pay.

Several of these factual claims are denied outright by
Dynamex. It denies that it recruited most of the Indirect
Drivers. It denies that it issued equipment (other than badges
and uniforms) to the Indirect Drivers. It denies that it made
deductions from the Indirect Drivers’ pay. For other claims,
Dynamex concedes that the Indirect Drivers were subject to these
requirements but denies that (1) it was the source of those
requirements and/or (2) it was responsible for enforcing them.
Dynamex’s principal point is that Google and the Masters set all
the requirements around how the Indirect Drivers were to perform
Google Express deliveries. Further, Google communicated directly
with the drivers and monitored their compliance with its
standard operating procedures through the Google Express
application. To the extent Dynamex communicated directly with
the Indirect Drivers during their shifts, it contends it was
43

simply passing on directives that came from Google. Likewise,
Dynamex claims that the orientation and training programs were
both required by and designed by Google. And Dynamex denies that
it had the ability to terminate Indirect Drivers –- rather, this
was done at the discretion of either Google or the drivers’
respective Masters.
Citing a handful cases from other jurisdictions construing
other employment statutes, Dynamex also argues that customerimposed requirements cannot be considered evidence of control as
matter of law. The Court disagrees with Dynamex on this point.
Neither the text of the Massachusetts Independent Contractor nor
the caselaw interpreting it recognize such a limitation. Indeed,
Massachusetts courts have recognized that it is a strict
liability statute, i.e., an employer’s reasons for exercising
control over its employees are not relevant to the control
analysis. See Somers, 911 N.E.2d at 749.
In any case, not much is left in terms of undisputed facts.
Dynamex concedes it ran background checks and drug tests on the
Indirect Drivers. It also admits it issued the drivers uniforms
and badges (although it disputes that these uniforms and badges
were always Dynamex-branded). But these concessions are not
enough to establish that Dynamex controlled the “means and
methods” by which the Indirect Drivers performed Google Express
deliveries. Athol, 786 N.E.2d at 371. Ouadani contends that
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Dynamex has manufactured many of these factual disputes by
submitting an affidavit that directly contradicts the
documentary evidence and the deposition testimony of its
corporate representative. The Court is not persuaded. For the
most part, the affidavit contradicts Ouadani’s characterization
of the facts. These contradictions will have to be resolved at
trial. The Court does not find as a matter of law that Dynamex
exercised actual control over the indirect drivers.
ORDER
For the foregoing reasons, the Court ALLOWS IN PART and
DENIES IN PART Ouadani’s motion for class certification as to
Counts I and II of the complaint (Dkt. No. 70). The Court
certifies the following class:
All individuals who performed Google Express
deliveries between July 16, 2014 and October 14, 2016
who (1) were categorized by Dynamex as “indirect
drivers,” (2) were associated with a master
independent contractor, and (3) were not W-2 employees
of their master independent contractor.
The Court DENIES Ouadani’s motion for summary judgment as to
Count I of the complaint (Dkt. No. 71). A status conference will
be held on October 1, 2019 at 9:30 AM.
SO ORDERED.
/s/ PATTI B. SARIS
Hon. Patti B. Saris
Chief United States District Judge

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