377 F. Supp. 3d 74
D.D.C.2019Background
- Plaintiffs (DaSilva, Ferreira, and a certified class) are delivery drivers who contracted with Border Transfer through motor-carrier CCAs (often via single-driver LLCs) and claim they were misclassified as independent contractors in violation of the Massachusetts Wage Act.
- Border Transfer is a property broker that assigns daily manifests and routes (Sears-managed), requires uniforms, insurance, and makes routine deductions from carrier payments (performance bond, property-damage recoveries, N/B "No Bill" deductions, uniform costs).
- Two standard CCAs were used: an earlier CCA (in place through early 2017) with detailed operational controls (installation steps, mandatory calls, meetings, route/time windows) and a later CCA with materially fewer operational specifications.
- The certified class is limited to individuals who personally performed Border Transfer deliveries full-time (≥40 hrs/week) and were classified as independent contractors since June 23, 2013.
- Procedurally: defendants moved for summary judgment; plaintiffs moved for partial summary judgment on liability. Court denied defendants’ summary judgment, granted plaintiffs’ partial summary judgment as to class members under the first (more detailed) CCA, and denied plaintiffs’ motion as to class members under the second CCA and as to individual liability of Border Transfer’s director/president, Patrick McCluskey.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Misclassification under Mass. independent-contractor statute (Prongs A & C) | Drivers were employees because Border Transfer retained contractual and actual control (especially under first CCA) and drivers lacked an independently established business | Border Transfer reserved independent-contractor labels and some discretion; second CCA lacks detailed control terms; factual disputes exist | Summary judgment for plaintiffs as to drivers under the first CCA (contractual right to control); genuine factual disputes prevent class-wide decision for drivers under the second CCA on both Prongs A and C |
| Recoverability of employer-authorized deductions (performance bonds, uniform costs, property-damage deductions) | Wage Act forbids employers from shifting such costs to employees even if in contract; class may recover deductions and expenses | CCAs authorized deductions; drivers consented; some costs were paid directly to third parties, not deducted | CCAs and consent do not bar Wage Act recovery; drivers can pursue recovery for these deductions |
| Insurance premiums (workers’ compensation and cargo insurance) | Following Awuah, employer cannot require employees to bear these premiums; drivers may recover them | Drivers paid insurers directly; not deducted wages; thus not recoverable like Awuah plaintiff | Awuah governs; Border Transfer cannot shift these employer-related insurance costs to (misclassified) drivers; premiums are recoverable despite being paid directly |
| Carmack Amendment / FAAAA preemption of property-damage claims | Wage Act claim concerns wages (distinct injury) and does not enlarge carrier liability for damaged goods; no preemption | Carmack/FAAAA preempt state-law claims touching carrier liability/pricing and therefore bar these Wage Act recovery theories | Carmack does not preempt the Wage Act wage-recovery claim here; FAAAA preemption not triggered because effect on prices/services is too remote |
| N/B ("No Bill") deductions for unfinished/unsuccessful deliveries | N/B deductions violate Wage Act because drivers earned pay for time/effort even when delivery unsuccessful; contract ambiguous—interpret against drafter | Drivers did not "earn" pay for unsuccessful deliveries under CCAs | Contract ambiguous on when a stop is "earned"; construed against Border Transfer—drivers may recover for unsuccessful-delivery N/B deductions; cancellation-before-work category remains fact-specific |
| Individual liability of Patrick McCluskey | As president/operator with control over finances, CCAs, and pay practices, McCluskey is personally liable under Mass. Gen. Laws ch. 149 | McCluskey’s exact role varies (director vs. president) and plaintiffs provide no period-specific proof of management-level control | Denied plaintiffs summary judgment on individual liability: McCluskey is liable as president for relevant periods, but plaintiffs failed to show agency/management-role evidence for periods when he was only a director |
| Class member Humberto Chantre (individual summary judgment) | Chantre is within certified class when he personally drove full-time and is covered by the first CCA | Chantre ran an LLC that sometimes employed other drivers and contracted for other carriers; defendants claim independent-contractor status | Defendants not entitled to summary judgment; Chantre’s period(s) of personal, full-time driving under the first CCA render him an employee as a matter of law for those periods |
Key Cases Cited
- Camara v. Attorney Gen., 458 Mass. 756 (Mass. 2011) (Wage Act prohibits employers from exempting themselves via special contract)
- Sebago v. Boston Cab Dispatch, Inc., 471 Mass. 321 (Mass. 2015) (worker must be an employee to get Wage Act protection; failure of any prong yields employee status)
- Somers v. Converged Access, Inc., 454 Mass. 582 (Mass. 2010) (labels in contract do not determine employment status)
- Chambers v. RDI Logistics, Inc., 476 Mass. 95 (Mass. 2016) (statutory framework for independent-contractor analysis; incorporation is not an absolute shield)
- Awuah v. Coverall North America, Inc., 460 Mass. 484 (Mass. 2011) (employer may not require employee to pay for workers’ compensation or similar insurance costs)
- Athol Daily News v. Bd. of Review, 439 Mass. 171 (Mass. 2003) (Prong A focuses on control over means and methods, not merely results)
- Crocker v. Townsend Oil Co., 464 Mass. 1 (Mass. 2012) (Wage Act cannot be circumvented by contractual provisions)