Ouadani v. Dynamex Operations E., LLC
| Decision Date | 13 September 2019 |
| Docket Number | Civil Action No. 16-12036-PBS |
| Citation | 405 F.Supp.3d 149 |
| Parties | Djamel OUADANI, on behalf of himself and all others similarly situated, Plaintiff, v. DYNAMEX OPERATIONS EAST, LLC, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Stephen S. Churchill, Rachel J. Smit, Fair Work, P.C., Boston, MA, for Plaintiff.
Diane M. Saunders, Ogletree Deakins Nash Smoak & Stewart, Boston, MA, for Defendant.
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.
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).
The following facts are undisputed except where otherwise stated.
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 same-day 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.
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 operating procedures in making deliveries. Dynamex was responsible for training the drivers on Google's standard operating procedures. This included administering Google-designed 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.
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
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 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 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 W-2 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 the record whether the remaining Masters and Agents classified their drivers as W-2 employees or independent contractors.
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...
To continue reading
Request your trial
- Ctr. for Biological Diversity v. U.S. Army Corps of Eng'rs
-
Gonzalez v. XPO Last Mile, Inc.
...here because their claims challenge XPO's company-wide classification of drivers. They rely on Ouadani v. Dynamex Operations East, LLC , 405 F. Supp. 3d 149, 171 (D. Mass. 2019), where a court in this district certified a class of drivers who, while working with contract carriers, made deli......
-
Mongue v. The Wheatleigh Corp.
...will resolve an issue that is central to the validity of each one of the claims in one §.'” Ouadani v. Dynamex Operations E., LLC, 405 F.Supp.3d 149, 161 (D. Mass. 2019) (quoting Dukes, 564 U.S. at 350). The class must not only raise common questions, but those questions must also generate ......
-
Wright v. S. New Hampshire Univ.
...they need only "share the same essential characteristics." Rapuano, 334 F.R.D. at 648 (quoting Ouadani v. Dynamex Operations E., LLC, 405 F. Supp. 3d 149, 162 (D. Mass. 2019) ). Plaintiff Wright's experience is likely typical of the putative class in its essential characteristics. According......