CECILIA M. ALTONAGA, District Judge.
Plaintiff, for herself and on behalf of a collective class, has brought a claim for failure to pay overtime compensation against Defendants, Handy Wash, Inc. ("Handy Wash"); Zuni Transportation, Inc. ("Zuni"); and Jorge Azor ("Azor") (collectively "Defendants"), pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. section 216(b). (See generally Compl.). Plaintiff seeks declaratory relief in Count II. (See id. 6-8). Five other individuals have filed Notices of Consent to join this action as party plaintiffs: Hugo Ramirez-Valandia ("Ramirez-Valandia"), Mercy Carriel ("Carriel"), Arturo Labrada ("Labrada"), Fabio Gonzalo Valencia ("Valencia"), and Fernando Bernales ("Bernales") (collectively the "opt-in plaintiffs"). (See generally Declarations and Notices of Consent to Join ("Notices of Consent") [ECF Nos. 5-1, 7-1, 8-1, 11-1 & 11-2]).
Defendants provide paratransit service throughout South Florida, including offering nonemergency ambulatory and non-ambulatory transportation to clients and patients. (See Compl. ¶¶ 2-4, 8-9). Zuni contracted with Miami-Dade County to offer paratransit service through a Paratransit Transportation Services Contract ... ("Paratransit Contract") [ECF No. 40-1]. (See also Affidavit of Jorge Azor ("Azor Affidavit") ¶ 9 [ECF No. 40]). In furnishing this paratransit service, Defendants retain employee drivers to complete Zuni routes, as well as independent contractor drivers who are paid at per-passenger rates without compensation for overtime worked. (See Compl. ¶¶ 14-15; Azor Aff. ¶¶ 10, 35-37). Despite the relatively simple, low-paying driver positions that Plaintiff and the class she seeks to represent held, Defendants misclassified these employees as independent contractors, circumventing federal law requiring the payment of overtime compensation and other benefits. (See Compl. ¶¶ 15-16). Defendants' annual gross revenue derived from interstate commerce is believed to be over
In 2008, Defendants hired Peña to work as a driver. (See id. ¶ 10). Defendants required her to sign an independent contractor agreement, setting Peña's compensation and controlling all aspects of her employment. (See Azor Aff. ¶¶ 12, 14; id., Peña Independent Contractor Agreement ("ICA"), 1-4 [ECF No. 40-3]). Peña worked ten to twelve hours per day, Monday through Friday, and worked an additional ten to twelve hours two weekends each month, averaging sixty hours a week. (See Compl. ¶ 16). Given her work schedule, Peña could not simultaneously maintain other employment. (See id.).
Peña's job duties included picking up clients and patients and driving them to designated locations (see id. ¶¶ 10, 12); adhering to the daily schedule for pick-ups and drop-offs assigned by Defendants in a "Daily Trip Log" (Mot., Ex. C1, Declaration of Maria G. Peña ("Peña Declaration") ¶ 12 [ECF No. 26-2]); cleaning and maintaining the vehicle to ensure it passed vehicle inspections (see Compl. ¶ 12); and following Defendants' policies and procedures of employment (see id.). Peña also wore a uniform shirt with Defendants' logo (see id. ¶ 12) and drove a vehicle owned or leased by Defendants with the words "Zuni Transportation" appearing on the vehicle's side (see id.; Peña Decl. ¶ 6). Defendants contributed to or paid for Peña's automobile insurance and provided her with a Nextel phone to communicate with Defendants' dispatchers. (See Compl. ¶ 13; Peña Decl. ¶ 20). Peña also used her personal cell phone to communicate with clients and patients regarding pick-ups and drop-offs. (See Peña Decl. ¶ 19).
Before starting work, Defendants required Peña to pass a background check and successfully complete training courses in defensive driving, courtesy driving, Americans with Disabilities Act awareness, and passenger assistance. (See id. ¶ 18). Defendants also accompanied and supervised newly hired employee drivers, including Peña, for approximately four hours at the beginning of each driver's employment. (See id.).
Peña seeks to represent and have notice sent to the following class of drivers:
(Mot., Ex. D, 1 ("Notice Form") [ECF No. 26-7]). The opt-in plaintiffs and prospective class are or were drivers employed by Defendants on a per-passenger rate, who held similar positions to Plaintiff, and who worked in excess of forty (40) hours during one or more work weeks but did not receive overtime compensation during the relevant time periods. (See Compl. ¶¶ 1, 14-16, 18). Plaintiff has submitted Declarations from herself and four other drivers who have stated they wish to join the suit. (See generally Mot., Exs. C1-C5 ("Plaintiffs Declarations") [ECF Nos. 26-2 to 26-6]).
Plaintiff asserts she and the proposed class of current and former drivers exercised little to no discretion in their daily duties but were all erroneously classified as independent contractors so Defendants could avoid paying overtime compensation. (See Mot. 2-3, 5-6 (citing to Pl.'s Decls.)). According to Peña, drivers' daily routines were substantially similar: they would transport clients and patients between pick-up and drop-off locations as assigned
According to Defendants, the Motion should be denied for several reasons. Defendants challenge the sufficiency of the Declarations Plaintiff and the opt-in plaintiffs rely upon to show the misclassified independent contractor and employee drivers are "similarly situated." (Resp. 3; see id. 5-10). Defendants insist the misclassification claims of Plaintiff and the proposed class will require highly individualized, fact-intensive analysis that defeats the efficiencies of collective treatment (See id. 3, 10-12). Further, Defendants challenge Plaintiffs standing under the FLSA. (See id. 4-5).
The FLSA permits a plaintiff to bring a collective action on behalf of similarly-situated persons subject to the requirement that prospective plaintiffs file a written consent in the court where the action is brought. See 29 U.S.C. § 216(b); Hipp, 252 F.3d at 1216 (citations omitted). In the interest of judicial economy, district courts have discretionary power to authorize the sending of notice to potential class members. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). Notice should only be authorized in appropriate cases. See Haynes v. Singer Co., 696 F.2d 884, 886 (11th Cir.1983). In order to grant conditional collective action certification, the Court must, at a minimum, satisfy itself that there are other employees who (1) are similarly situated with regard to their job requirements and pay provisions, and who (2) desire to opt into the case. See Dybach v. Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir.1991).
Regarding the first requirement, the plaintiff bears the burden of proving she and the class she seeks to represent are similarly situated. See Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996). To evaluate whether a plaintiff has demonstrated the existence of a similarly-situated class, courts in the Eleventh Circuit utilize a two-tiered procedure that recognizes distinct burdens at different stages of the litigation process. See Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1243 n. 2 (11th Cir.2003) (citing Hipp, 252 F.3d at 1218 and collecting cases). The first tier — the one at issue in the present Motion — is referred to as the notice stage. See id. (quoting Hipp, 252 F.3d at 1218).
Id. (quoting Hipp, 252 F.3d at 1218).
The second tier of analysis, re-examining the question of certification after discovery
Id. (quoting Hipp, 252 F.3d at 1218).
Regarding the second requirement, a plaintiff must show there are employees who would opt in if given notice. See Mackenzie v. Kindred Hosps. E., L.L.C., 276 F.Supp.2d 1211, 1220 (M.D.Fla. 2003) ("[A] showing that others desire to opt-in must be made before notice is authorized." (alteration added; footnote call number and citation omitted)). Based on this showing, a "district court should satisfy itself that there are other employees of the department-employer who desire to `opt-in'...." Dybach, 942 F.2d at 1567 (alteration added). The burden is on the plaintiff to produce evidence demonstrating aggrieved individuals exist within the proposed class. See Haynes, 696 F.2d at 888 (holding the court properly declined to authorize notice to a prospective class where the only evidence presented was counsel's assertions that FLSA violations were widespread and that additional plaintiffs would come from other stores). If the plaintiff does not satisfy her burden, the Court should decline the certification of a collective action "to avoid the `stirring up' of litigation through unwarranted solicitation." White v. Osmose, Inc., 204 F.Supp.2d 1309, 1318 (M.D.Ala.2002) (quoting Brooks v. BellSouth Telecomms., Inc., 164 F.R.D. 561, 567 (N.D.Ala.1995)).
Peña seeks conditional certification of the following class of individuals: "a putative class of those similarly situated — Defendants' current and former drivers — who performed work for Defendants in the State of Florida during the period of time from January 30, 2011 through the present." (Mot. 2). Peña asserts members of this class were subject to "misclassification" resulting in Defendants'"failure to pay overtime wages for all hours worked in excess of forty (40) per week." (Id.). Defendants challenge conditional certification on multiple grounds, arguing Peña and the class she seeks to represent are independent contractors exempt from the FLSA's overtime-pay requirements, and they are not similarly situated. (See Resp. 2, 4-10). Defendants contest the sufficiency of Plaintiffs allegations and evidence that the opt-in plaintiffs are similarly situated and further contend determining employee status entails a case-by-case analysis that will negate the judicial economy of class certification. (See id. 5-6, 10-12).
The primary question at this notice stage is whether Defendants'"employees are similarly situated with respect to their job requirements and with regard to their pay provisions" and whether these individuals desire to opt-in. Rojas v. Garda CL Se., Inc., 297 F.R.D. 669, 675 (S.D.Fla.2013) (quoting Bennett v. Hayes Robertson Group, Inc., 880 F.Supp.2d 1270, 1282-83 (S.D.Fla.2012)) (internal quotation marks omitted). As noted, the Court applies a "fairly lenient standard" at the notice stage in determining whether the class should be conditionally certified. Hipp, 252 F.3d at 1218. The rationale for this is that "at the early stages of litigation, plaintiffs have not had time to conduct
Regarding the "similarly-situated" requirement, courts commonly consider five factors at the conditional-certification stage: (1) whether plaintiffs held the same job title; (2) whether they worked in the same geographic location; (3) whether the alleged violations occurred during the same time period; (4) whether plaintiffs were subjected to the same policies and practices, and whether the policies and practices were established in the same manner and by the same decision maker; and (5) the degree to which the actions constituting the claimed violations are similar. E.g., Rojas, 297 F.R.D. at 677 (citations and internal quotation marks omitted). No single factor is dispositive. Id. (citation omitted).
Regarding the existence of similarly-situated potential plaintiffs, Defendants challenge Plaintiff's evidence and "generalized and conclusory allegations," the formulaic declarations by opt-in plaintiffs, and the failure to "engage" Azor's Affidavit. (Resp. 5; see id. 3-10). As evidence Peña and the opt-in plaintiffs are not similarly situated, Defendants rely on Azor's Affidavit, which describes certain differences in the drivers' employment relationships, terms of employment, and job responsibilities. (See Resp. 7-9). Defendants explain they employ two classes of drivers — independent contractor drivers and employee drivers. (See id. 7). Defendants stress Peña and the opt-in plaintiffs signed independent contractor agreements. (See id.).
Peña insists she satisfies each of five factors. Peña and the opt-in plaintiffs all held the same title and position of "independent contractors" ("driver[s]") for Defendants. (Mot. 15 (citing Pl.'s Decls.)). They all worked in the same geographic location in South Florida, transporting patients primarily within Miami-Dade County. (See Reply 3; Pl.'s Decls. ¶ 4). The alleged FLSA violations occurred during the same time period. Peña was a full-time driver for Defendants from 2008 until March 24, 2013, and she claims overtime pay from January 30, 2011 through March 24, 2013. (See Peña Decl. ¶ 4; Plaintiff's Notice of Filing Her Statement of Claim ¶ 2 [ECF No. 6]). The opt-in plaintiffs similarly claim overtime pay during the dates of their employment from January 30, 2011 to the present.
Regarding the fourth and fifth factors, Defendants argue Peña and the other drivers were not subjected to the same policies and practices. Defendants explain contract drivers were paid different per-passenger rates and had the option to operate their own vehicles, lease-to-own Zuni's vehicles, or pay to use Zuni's vehicles. (See Resp. 7-8; Azor Aff. ¶¶ 5, 16-19). According to Defendants, contract drivers were treated differently from employee drivers in terms of the actual routes assigned and how drivers were notified of their route assignments. (See Resp. 9).
Plaintiffs need "only demonstrate that their positions are similar, not identical, to
Plaintiff contends the independent contractor drivers are similarly situated because all drivers were subjected to the same policies and practices pursuant to the Paratransit Contract. (See Reply 2-3). Plaintiff agrees with Defendants the Paratransit Contract governs the provision of paratransit service by Defendants, Peña, opt-in plaintiffs, and the putative class. (See id. 2). The Paratransit Contract outlines a limited geographic area, describes the same set of duties, code of conduct, and training required of all drivers/chauffeurs. (See id. 3 (citing Paratransit Contract ¶¶ 11.0, 22.9, 22.10 & 23)). Plaintiff also presents statements from Defendants' website describing the similar paratransit service provided by Defendants' drivers. (See Mot., Ex. B, 1-2 [ECF No. 26-1] & Ex. C1-2, 1-2 [ECF No. 26-2]). Further, Peña and the opt-in plaintiffs assert they were subject to the same compensation policies, regardless if they received different per-passenger rates. (See Reply 3). The drivers were each paid on a per-passenger basis and were not paid overtime. (See id.). The independent contractor agreements Peña and the opt-in plaintiffs signed are "near[ly] identical" other than the per-passenger rate. (Reply 3 (citation omitted)).
The operational set-up is similar for all contract drivers as well. Contrary to the statements made by Azor in his Affidavit, Peña and most of the opt-in plaintiffs state Defendants provided them vehicles (see Peña Decl. ¶¶ 6-7; Ramirez-Valandia Decl. ¶¶ 6-7; Labrada Decl. ¶¶ 6-7; Carriel Decl. ¶¶ 6-7); Valencia drove a vehicle with "Zuni Transportation" written on its side, but does not specify whether Defendants provided him with the vehicle (see Valencia Decl. ¶ 6). According to Azor, contract drivers absorbed all operational expenses, including gasoline, tolls, vehicle repair and maintenance. (See Azor Aff. ¶ 19). While Plaintiffs Reply is silent as to these expenses, Defendants' arguments suggest the class of contract drivers was treated the same. Additionally, according to Peña and the opt-in plaintiffs, Defendants provided them with automobile insurance and Nextel phones to communicate with dispatchers. (See Peña Decl. ¶¶ 14, 20; Valencia Decl. ¶¶ 14, 20; Ramirez-Valandia Decl. ¶¶ 14, 20; Labrada Decl. ¶¶ 14, 20). Although Defendants contend the contract drivers bore the cost of these additional expenses in the form of reduced wages, Defendants still paid for and provided these benefits. (See Resp. 7 (citing Azor Aff. ¶¶ 19-21)).
Defendants state it is unclear whether Peña and the opt-in plaintiffs were subject to the same direct management at the same site. (See id. 8-9). But Plaintiff's Declarations indicate the policies and practices were established in the same manner and by the same decision makers. Each "near[ly] identical" independent contractor agreement is signed by Handy Wash and the respective opt-in plaintiff driver.
Defendants nevertheless insist the Court should discount Plaintiffs Declarations as "identical." (Resp. 1 n. 1). In finding Peña and the opt-in plaintiffs are similarly situated, the Court does not rely solely on Plaintiffs Declarations. Evidence of the similarity in the drivers' job functions comes from other sources already discussed, including the Paratransit Contract, Defendants' website, and the independent contractor agreements. Moreover, Defendants admit "Peña and the putative class members performed similar work...." (Id. 11).
This is not a case where evidentiary support for Plaintiffs position can only be found in "identical" declarations. See Palacios v. Boehringer Ingelheim Pharm., Inc., No. 10-22398-Civ-UU, 2011 WL 6794438, at *5 (S.D.Fla. Apr. 19, 2011) (denying conditional class certification where plaintiff had attached "three almost identical, cut-and-paste declarations" and made assertions based on "beliefs" and "conversations" alone). Plaintiffs submissions have "successfully engage[d] [D]efendants' affidavit[] to the contrary." Grayson, 79 F.3d at 1097 (alterations added; citation omitted); Reyes v. AT & T Corp., 801 F.Supp.2d 1350, 1359 (S.D.Fla.2011) ("To the extent that Defendant's mass of affidavit evidence supports the defense theory that there are actually three positions encompassed by the Retail Account Executive category, however, I find Plaintiff `successfully engaged' these affidavits by filing Urquhart and Roggensack's affidavits."). Here, Plaintiff submits five declarations in support, compared to Defendants' singular Azor Affidavit, and Defendants' own records and admissions support the conclusion the proposed class is similarly situated. To the extent the Azor Affidavit raises factual issues, those can be addressed at the decertification stage after discovery is complete.
In sum, application of the five factors in the similarly-situated review, see Rojas, 297 F.R.D. at 676-77, favors granting conditional class certification. As the Eleventh Circuit has emphasized, the Court is to analyze whether employees are similarly situated and "not whether their positions are identical." Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir.2008) (citing Grayson, 79 F.3d at 1096); see also Gipson v. Sw. Bell Tel. Co., No. 08-CV-2017 EFM/DJW, 2009 WL 1044941, at *3 (D.Kan. Apr. 20, 2009) ("Variations among actual job title or some responsibilities does not preclude notice stage certification where all employees share general duties and the defendant denies overtime pay to all." (footnote call number omitted)). All proposed members of Plaintiffs class were drivers employed by Defendants who worked in the same geographic location in Miami-Dade County. The FLSA violations of failure to pay overtime compensation due to misclassification all occurred during the same time period, that is, from January 30, 2011 to present. All Plaintiffs are alleged to have been subjected to the same policies and practices of being denied overtime by Defendants, and there is no evidence the policies and practices were established in different ways by different decision makers, even though drivers were paid different per-passenger rates. Last, the actions,
Under the second requirement, Plaintiff must establish a reasonable basis for the existence of other potential opt-in plaintiffs to justify certifying a conditional class. This burden "is not onerous." Rojas, 297 F.R.D. at 676. "[T]he existence of just one other co-worker who desires to join is sufficient to raise the Plaintiff's contention beyond one of pure speculation.... Courts in this District have conditionally certified classes with as few as two affidavits from potential plaintiffs." Id. (alteration in original; internal quotation marks and citations omitted) (citing cases). In addition to Peña, five drivers presently desire to opt-in and have filed consents to join. Further, Plaintiffs Declarations state Peña and the opt-in plaintiffs know of other current and former drivers employed by Defendants who performed the same type of work, were similarly under-compensated, and would desire to join a collective action if given notice of their rights. (See Pl.'s Decls. ¶¶ 24-30). Plaintiff has satisfied the Court "there are other employees of the [Defendant]-employer who desire to `opt-in'...." Dybach, 942 F.2d at 1567 (alterations added).
Defendants further challenge Plaintiff's Motion for conditional certification, arguing Peña lacks standing to bring this suit because she and the putative class are independent contractors who are exempt from the FLSA's overtime-pay requirements. (See Resp. 4-6). Defendants rely on Murray v. Playmaker Servs., LLC, 512 F.Supp.2d 1273, 1276 (S.D.Fla.2007), and Demauro v. Limo, Inc., No. 8:10-cv-413-T-33AEP, 2011 WL 9191, at *4 (M.D.Fla. Jan. 3, 2011), as support for denying class certification because the FLSA does not apply to independent contractors, and Peña and the opt-in plaintiffs each signed independent contractor agreements with varying terms (see Resp. 7-8, 13). According to Defendants, "consideration of this issue is case specific, and is seldom appropriate to certification as a collective action...." (Resp. 6 (citing Bedoya v. Aventura Limousine & Transp. Serv., Inc., No. 11-24432-CIV, 2012 WL 1933553, at *5 (S.D.Fla. Apr. 10, 2012); Demauro, 2011 WL 9191, at *3)).
Defendants ask the Court to decide the employee status of Peña and the opt-in plaintiffs, an issue central to this case, or in the alternative, to deny conditional certification because establishing that Peña "was misclassified, and that other similarly situated misclassified employees exist" (Resp. 6), will require a fact-intensive, individualized analysis (see id. 6, 11). Whether employees are similarly situated for conditional certification is "viewed in light of the nature of the claims and defenses applicable to a particular action." Gutescu v. Carey Int'l, Inc., No. 01-4026-CIV-MARTINEZ, 2003 WL 25586749, at *10 (S.D.Fla. July 21, 2003). To the extent courts consider misclassification in deciding whether collective treatment is proper, it is in the context of deciding if the economic relaities of the employment relationship will require individualized, fact-intensive discovery, an issue the Court addresses in the next section.
Whether Plaintiff and the class she seeks to represent were in fact misclassified
Defendants challenge the propriety of conditional class certification on the basis that individualized inquiries make litigating as a collective action inefficient in misclassification cases such as this one. (See Resp. 5, 10-12). Although Peña and potential class members performed similar work as drivers, Defendants contend the individualized analysis required to assess the employee status of each driver for FLSA purposes precludes class certification. (See id. 11-12 (citing cases)). For example, Defendants stress the differences between drivers, including the types of vehicles driven, whether Defendants owned them, the routes assigned, and the per-passenger rates. (See id. 12).
"The `economic realities' test is employed in FLSA cases to determine whether an individual is an employee versus an independent contractor for purposes
Altman v. Sterling Caterers, Inc., 879 F.Supp.2d 1375, 1380 (S.D.Fla.2012) (alteration added; citations omitted). "[T]hese six factors are a guide, are not exhaustive and no single factor is dispositive." Id. at 1381 (alteration added; citation omitted). The factors are also relevant to assessing whether Plaintiff and the class she seeks to represent are similarly situated. See Gutescu, 2003 WL 25586749, at *10 (considering the factors under the "economic realities test" in determining whether plaintiffs are similarly situated in order to certify a conditional FLSA class).
Citing Demauro, Defendants emphasize the economic realities test will result in a "necessarily individualized assessment [that] eviscerates all notions of judicial economy." (Resp. 12 (alteration added; internal citation and quotation marks omitted) (quoting Demauro, 2011 WL 9191, at *3-4)). The facts in Demauro are distinguishable. In that case, defendants submitted "numerous declarations of ExecuCar drivers who do not claim to be employees, but rather who state that they prefer to be independent contractors who are not entitled to the FLSA's overtime provisions." Demauro, 2011 WL 9191, at *4 n. 5.
The Court is not persuaded an inherently individualized analysis "ill-suited to collective action treatment" is sure to result. See Walker v. Honghua America, LLC, 870 F.Supp.2d 462, 470 (S.D.Tex.2012) ("Contrary to Defendant's assertion, many courts have granted conditional certification in FLSA cases involving disputes over whether workers were misclassified as independent contractors." (citing cases)). In the present case, it appears the majority of the economic realities factors can be assessed collectively. See Carrera v. UPS Supply Chain Solutions, Inc., No. 10-60263-Civ-Lenard/Turnoff, 2011 WL 1303151 (S.D.Fla. Mar. 31, 2011) [ECF No. 169], 14-15 (order adopting in part magistrate judge's recommendation and granting FLSA conditional certification) ("The Court also recognizes the issue of whether the opt-in plaintiffs are properly classified as independent contractors or [Defendant's] employees requires an individualized analysis of such factors as the nature and extent of [Defendant's] control, the plaintiff's opportunity for profit or loss, the plaintiff's investment, whether the services required a special skill, the permanency of the relationship, and whether the service is an integral part of [Defendant's] business.... Many of the issues ... can be resolved or addressed as part of a collective action and perhaps in a much more efficient manner than would otherwise be the case." (alterations added; internal citations omitted)).
Admittedly, several of the economic realities factors will require a more individualized analysis, including the degree of permanency and duration of the working relationship, facts specific to each driver. The dates of employment for Pena and the opt-in plaintiffs differ. Additionally, Defendants assert some independent contractor drivers, such as Ramirez-Valandia, were incorporated, while others worked in their individual capacities. (See Resp. 8 (citing Azor Aff. ¶ 23)). Whether potential plaintiffs were incorporated or had the ability to employ others to accomplish their duties may also require an individualized assessment. Ramirez-Valandia's independent contractor agreement is between Handy Wash and Hugo's Driver Corp., and Ramirez-Valandia identifies himself as the president of Hugo's Driver Corp. (See Azor Aff., Ramirez-Valandia ICA, 5-9 [ECF No. 40-3]). Nonetheless, the issue of incorporation is not cause to deny certification at the notice stage. Of the opt-in Plaintiffs, there is only evidence Ramirez-Valandia was incorporated. Whether other opt-in plaintiffs were incorporated may be considered at the second-tier inquiry. Peña and the opt-in plaintiffs are similarly situated even considering the economic realities of their employment. Defendants may raise the issue of the fact-intensive nature of any class treatment on a motion to decertify, after discovery has concluded.
Finally, it is worth noting Defendants' argument that the contract drivers are a distinct class of drivers uniformly exempt from the FLSA supports a finding the drivers are similarly situated. See Rojas, 297 F.R.D. at 678 ("Uniform classification of a group as exempt under the FLSA, even if not sufficient to prove that the group is similarly situated for the purposes of class certification, certainly does not suggest that the group must be dissimilar... [and] cuts against any suggestion that a highly individualized analysis of the issue of exemption is necessary within the group of drivers/messengers themselves." (alterations added)).
Last, Defendants take issue with the notice proposed by Plaintiff. Defendants challenge the range of dates and scope of the class of drivers identified by Plaintiff in her Motion. (See Resp. 2). Plaintiff explains the dates noted in the Motion are a typographical error. (See Reply 10). The correct dates are included on the Notice
Defendants also insist the putative class should be narrower as Plaintiff's proposed class includes drivers for Handy Wash, Zuni, and/or Azor, from January 30, 2011 to the present who worked more than 40 hours in a workweek and were paid as independent contractors or did not receive overtime pay. (See Notice Form 1). The Motion describes a class of drivers who were misclassified as independent contractors, but the language in the proposed Notice Form is overly broad. The Notice Form includes all current and former drivers who did not receive overtime pay calculated at time and one-half the regular rate, without distinguishing between misclassified independent contractors and employee drivers. Only prospective plaintiffs, who were misclassified as independent contractor drivers and who worked over forty (40) hours per week without proper overtime compensation, are similarly situated to Pena and the other opt-in plaintiffs.
Another objection raised by Defendants is the putative class proposed by Plaintiff fails to distinguish between contract drivers employed by Zuni and those employed by Handy Wash, as well as the different routes assigned to drivers. (See Resp. 2). A court may decertify the class or assign subclasses of plaintiffs as appropriate after discovery is complete, thus addressing Defendants' additional concerns regarding the scope of drivers included in the conditional class. (See Reply 10 (citing Dice v. Weiser Sec. Servs., Inc., No. 06-61133-CIV, 2008 WL 249250, at *1 (S.D.Fla. Jan. 29, 2008) ("The Court finds it is not prohibited from creating a subclass in this case and the creation of such a subclass would best serve considerations of convenience, cost, judicial economy, and expeditious trial process."))).
Defendants do not otherwise object to the form of the notice suggested in the Motion and the attached Notice and Consent Forms (see generally Resp.; Mot, Exs. D & E), including: the ten-day timeframe for providing Plaintiff with names and last known addresses, telephone and fax numbers, and email addresses for potential class members (see Mot. 17, 21); the length of the notice period and tolling the statute of limitations (see id. 9); the means for notification — emailing, faxing, mailing, and conspicuously posting at Defendants' workplace the Notice and Consent Forms (see id. 18-21), as well as including the forms in the next paycheck/paystub Defendants provide employed drivers (see Mot. 21).
For the foregoing reasons, it is
