299 F. Supp. 3d 888
S.D. Ohio2018Background
- Plaintiffs (Hall, Bryan, Thompson) are former delivery drivers for U.S. Cargo who signed "Independent Contractor Agreement(s)" and allege they were misclassified as independent contractors and denied overtime pay.
- Plaintiffs state they worked long hours (typically ~50–67.5 hrs/week) and were paid a flat daily rate plus per-stop and per-piece amounts, regardless of hours.
- The Agreements contained a clause waiving "rights to a jury trial, or certification of a class action," but did not include an arbitration agreement.
- Defendant moved to dismiss Plaintiffs' collective/class claims based on those waivers and argued Plaintiffs are inadequate representatives.
- Plaintiffs moved for conditional certification under the FLSA (29 U.S.C. § 216(b)) for a statewide Ohio collective of independent-contractor delivery drivers (March 15, 2014 to present).
- The court denied the dismissal challenge to class/collective claims and granted conditional certification with limits and court‑supervised notice procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability of class/collective-action waiver in Agreement | Waiver cannot bar collective/class claims because Plaintiffs can still sue individually; FLSA rights cannot be waived absent arbitration | The Agreement expressly waives class certification and should bar collective/class claims | Waiver unenforceable without an arbitration provision; Motion to dismiss denied |
| Conditional certification — "similarly situated" requirement | Plaintiffs made a "modest plus" showing: common Agreement, uniform pay scheme, company rules, and evidence of common misclassification | Plaintiffs differ (e.g., some signed individually, some via LLC); classification and earnings are individualized | Plaintiffs satisfied the lenient/"modest plus" standard for conditional certification; collective certified for Ohio I.C. drivers |
| Scope of collective (class definition & geography) | Seek all delivery drivers classified as independent contractors in Ohio from Mar 15, 2014 to present | Overbroad: should be limited to Columbus location and to drivers actually misclassified | Court limited class to those classified as independent contractors but kept statewide Ohio scope based on evidence that same Agreement applied companywide |
| Notice content, delivery, and opt-in period | Proposed notice, mail/email delivery, 90-day opt-in, and certain content (no costs language; reference to contingency fee) | Ask to include costs/fees warning, defense counsel contact, limit delivery to first-class mail, shorter opt-in, no reminder notices | Court approved modified notice: no cost‑liability language, must explain contingency fee briefly, include that defendant has counsel (no contact details), allow mail + email (no texting), no reminder, 45-day opt-in period |
Key Cases Cited
- Killion v. KeHE Distributors, LLC, 761 F.3d 574 (6th Cir. 2014) (employees cannot waive FLSA collective-action rights in agreements that lack an arbitration provision)
- Boaz v. FedEx Customer Information Servs., Inc., 725 F.3d 603 (6th Cir. 2013) (employees cannot contractually shorten or waive FLSA statutory rights absent contrary congressional command)
- Comer v. Wal-Mart Stores, Inc., 454 F.3d 544 (6th Cir. 2006) (two-step approach and "similarly situated" standard for FLSA collective actions)
- Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947) (economic-realities test — labeling as independent contractor does not control if worker is an employee)
- Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989) (court-supervised notice in collective actions promotes judicial economy)
- Keller v. Miri Microsystems, LLC, 781 F.3d 799 (6th Cir. 2015) (FLSA’s definition of "employee" is broad; apply economic reality test)