York v. Velox Express, Inc.

Decision Date10 March 2021
Docket NumberCivil Action No. 3:19-cv-092
Citation524 F.Supp.3d 679
CourtU.S. District Court — Western District of Kentucky
Parties Vanessa YORK, Marshal Emmerling, and Matthew Moss, each individually and on behalf of others similarly situated, Plaintiffs v. VELOX EXPRESS, INC., Defendant

Joshua Sanford, Stephen Charles Rauls, Sanford Law Firm, PLLC, Little Rock, AR, Michele Henry, Craig Henry PLC, Louisville, KY, for Plaintiffs.

Benjamin C. Fultz, Daniel E. Hancock, John David Dyche, Fultz Maddox Dickens PLC, Louisville, KY, for Defendant.


Rebecca Grady Jennings, District Judge

Plaintiffs Vanessa York, Marshal Emmerling, and Matthew Moss ("Plaintiffs") seek relief against Velox Express, Inc. ("Velox") for alleged wage violations under Section 16(b) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). [DE 1]. Plaintiffs move for conditional certification of an FLSA collective action, disclosure of potential opt-in plaintiffs’ contact information, and court-approved notice to the potential plaintiffs under 29 U.S.C. § 216(b) ("Motion"). [DE 29]. Velox opposed the Motion, [DE 31], and Plaintiffs replied. [DE 32]. The matter is ripe. For the reasons below, the Motion [DE 29] is GRANTED in part .


"Velox is a logistics company." [DE 31 at 215]. Plaintiffs all performed courier and delivery services for Velox in the Arkansas region. [DE 1 at 4]. Plaintiffs allege that Velox "has a uniform policy and practice of classifying its delivery drivers, also known as couriers ..., as independent contractors to avoid the minimum wage and overtime requirements of the" FLSA. [DE 29 at 171]. Plaintiffs "assert claims under the [FLSA] alleging that Velox did not pay them statutory minimum wage and overtime." [DE 31 at 213]. Plaintiffs now move to "conditionally certify a collective action pursuant to Section 216(b) of the FLSA to allow other similarly situated Drivers to be notified of their right to join this case." [DE 29 at 171]. Plaintiffs seek Court approval of plans for the opt-in process and attach proposed notice and consent forms to the Motion. [Id. ; see also DE 29-1, 29-2, 29-3].


"Congress passed the FLSA with broad remedial intent" to protect all "covered workers from substandard wages and oppressive working hours." Keller v. Miri Microsystems LLC , 781 F.3d 799, 806 (6th Cir. 2015) ; Christopher v. SmithKline Beecham Corp. , 567 U.S. 142, 147, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012) (quoting Barrentine v. Arkansas-Best Freight Sys., Inc. , 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) ); 29 U.S.C. § 202(a). Under the FLSA, non-exempt, hourly employees who work more than forty hours weekly have a right to receive overtime compensation. 29 U.S.C. § 207(a). If an employer violates the FLSA by not paying overtime, an employee may bring a collective action individually and on behalf of all those similarly situated, who may then opt-in by giving written consent. 29 U.S.C. § 216(b). "Courts interpreting the FLSA must consider Congress's remedial purpose." Keller , 781 F.3d at 806.

"The certification process in a FLSA collective action typically proceeds in two phases." Atkinson v. TeleTech Holdings, Inc. , No. 3:14-cv-253, 2015 WL 853234, at *2 (S.D. Ohio Feb. 26, 2015). "The first phase takes place at the beginning of discovery," Hathaway v. Shawn Jones Masonry , No. 5:11-cv-121, 2012 WL 1252569, at *2 (W.D. Ky. Apr. 13, 2012), and the plaintiff must only "show that his position is similar, not identical, to the positions held by the putative class member." Comer v. Wal-Mart Stores, Inc. , 454 F.3d 544, 546-47 (6th Cir. 2006) (quoting Pritchard v. Dent Wizard Int'l Corp. , 210 F.R.D. 591, 594 (S.D. Ohio 2002) ) (internal quotation marks omitted). Plaintiffs "are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs." O'Brien v. Ed Donnelly Enterprises, Inc. , 575 F.3d 567, 585 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald Co. v. Gomez , 577 U.S. 153, 136 S. Ct. 663, 193 L.Ed.2d 571 (2016). Employees may also be similarly situated if their claims are merely "unified by common theories of defendants’ statutory violations, even if the proofs of these theories are inevitably individualized and distinct." Id. Indeed, showing a unified policy of violations is not required for conditional certification. Id. at 584.

In the first phase, the court applies a "fairly lenient standard," which "typically results in conditional certification of the class." Comer , 454 F.3d at 547 (6th Cir. 2006) (quoting Morisky v. Public Serv. Elec. & Gas Co. , 111 F. Supp. 2d 493, 497 (D.N.J. 2000) ). To meet this standard, plaintiffs must make "a modest factual showing" of "a colorable basis for their claim that a class of similarly situated plaintiffs exist." See Stine v. Fedex Ground Package Sys., Inc. , No. CV 18-114-DLB-CJS, 2019 WL 2518127, at *2 (E.D. Ky. June 18, 2019) (quoting Olivo v. GMAC Mortg. Corp. , 374 F. Supp. 2d 545, 548 (E.D. Mich. 2004) ) (internal quotation marks and formatting omitted). In this phase, a court "does not generally consider the merits of the claims, resolve factual disputes, or evaluate credibility." Myers v. Marietta Mem'l Hosp. , 201 F. Supp. 3d 884, 890 (S.D. Ohio 2016) (quoting Waggoner v. U.S. Bancorp , 110 F. Supp. 3d 759, 765 (N.D. Ohio 2015) ). "Once a court determines that the potential opt-in plaintiffs are similarly situated to the named plaintiffs, notice is sent, opt-in forms are filed and discovery takes place." Atkinson , 2015 WL 853234 at *3 (internal quotation marks omitted).

In the second phase, "the defendant may file a motion to decertify the class" and "the court revisits, with greater scrutiny, the question of whether the class members are, in fact, similarly situated." Id.

A. Conditional Certification

Plaintiffs request conditional certification. In support, Plaintiff York submitted a declaration alleging that: (1) it was Velox's "policy to pay Drivers a fixed rate for routes driven or items delivered, rather than according to the actual amount of time worked by Drivers"; (2) sometimes her "duties for [Velox] required [her] to work more than forty (40) hours per week"; (3) she "regularly worked between forty (40) and forty-five (45) hours per week for" Velox; (4) Velox "never paid [her] an overtime premium for hours worked over forty per week, and ... never gave [her] the option of being paid overtime"; (5) "[o]ther Drivers also worked more than forty (40) hours per week"; and (6) she "know[s] of no other Drivers who were paid an overtime premium, and [Velox] never told [her] that [she] was being treated any differently than other Drivers." [DE 29-7 at 204-05]. Plaintiffs assert that the Court should conditionally certify because their causes of action are "unified by common theories of defendants’ statutory violations." O'Brien , 575 F.3d at 585. Velox argues that Plaintiffs have failed to meet "their burden of showing that members of the putative class are ‘similarly situated’ to them[.]" [DE 31 at 213].

1. Common Plan or Policy

Under O'Brien , Plaintiffs need not present evidence of a corporate decision to ignore published policies. Rather, Plaintiffs must set forth claims that are "unified by common theories of defendants’ statutory violations, even if the proofs of these theories are inevitably individualized and distinct." 575 F.3d at 585. Plaintiffs have done so by alleging that Velox: (1) does not pay Drivers any overtime premium, even though "Drivers sometimes work more than forty (40) hours per week"; (2) "requires its Drivers to use their own vehicles and pay their own vehicle-related expenses" which brings "their net pay to below the minimum wage"; and (3) "requires its Drivers to enter into standardized agreements with [Velox] establishing the parameters of Drivers’ relationship with [Velox] and asserting [Velox]’s treatment of Drivers as independent contractors." [DE 29 at 177-78].

Velox argues that Plaintiffs have failed to demonstrate that Plaintiffs are similarly situated to potential opt-in plaintiffs for two reasons.1 [DE 31 at 214]. First, Velox argues that "Plaintiffs base their conditional certification request on a single Declaration consisting largely of hearsay and conclusory allegations related to unidentified ‘other drivers’ at a single Velox location in Arkansas" and that such a "Declaration is insufficient to meet Plaintiffs’ burden of establishing that the putative class members are similarly situated for purposes of conditional certification." [Id. at 214]. But "[m]any courts" in the Sixth Circuit "have held that employee statements regarding their employer's policies and practices and hours worked by other employees were admissible evidence based on the employee's personal knowledge" and could support conditional class certification. Myers , 201 F. Supp. 3d at 894-96 (finding that even though plaintiffs’ affidavits were "not detailed," they supported conditional certification because "it is reasonable to infer that in the course of their daily work Plaintiffs would have personal knowledge about whether other employees clocked in and clocked out for lunch breaks or were regularly unable to take a lunch break"); see Noble v. Serco, Inc. , No. 3:08-76-DCR, 2009 WL 3154252, at *3 (E.D. Ky. Sept. 28, 2009) (finding that where affiants stated that they "got to know several other" employees working in the same capacity, it was reasonable to infer that the affiants would have talked to their coworkers about their pay and hours worked and thus had personal knowledge on the subject). Thus, Plaintiff York's declaration is sufficient to support conditional certification.

2. Arbitration Agreements

Second, Velox argues that "a significant number and percentage of the members of the putative class have expressly agreed with Velox to...

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