DECISION AND ORDER ON PLAINTIFFS' MOTION FOR CONDITIONAL CERTIFICATION

D. BROCK HORNBY, District Judge.

Current and former delivery drivers in Maine for FedEx Ground Package System, Inc. and its division FedEx Home Delivery (collectively "FedEx") have brought this lawsuit alleging that FedEx has violated the Fair Labor Standards Act ("FLSA") by misclassifying them as independent contractors and, as a result of the misclassification, has failed to pay them overtime for all hours worked in excess of 40 hours per week. The drivers have moved to certify this action conditionally as a collective action under the FLSA, and to provide notice to all potential opt-in members as authorized by 29 U.S.C. § 216(b). After oral argument on September 2, 2011, I GRANT the motion for conditional certification.

ANALYSIS

FLSA Conditional Certification

Determining ultimately whether FedEx owes overtime pay to these drivers under the FLSA depends on whether they are "independent contractors" or "employees," because the FLSA requires employers to pay overtime compensation to "employees" who work more than 40 hours per week, 29 U.S.C. §§ 206, 207. To enforce this requirement, the statute permits similarly situated employees to sue collectively for violations of the rule, 29 U.S.C. § 216(b). A two-step process determines whether a proposed group of plaintiffs is "similarly situated," and therefore qualified to proceed as a conditional collective action. See Prescott v. Prudential Ins. Co., 729 F.Supp.2d 357, 363-64 (D.Me. 2010) (citing Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 n. 2 (5th Cir.2008)); Kane v. Gage Merchandising Servs., Inc., 138 F.Supp.2d 212, 214 (D.Mass.2001). In the first step, assessed early in the litigation, plaintiffs need make only a "modest factual showing" that, with similar but not necessarily identical jobs, they suffered from a common unlawful policy or plan. See Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 547 (6th Cir.2006) (citations omitted). If they make this showing, then notice can go out inviting other similarly situated workers to "opt into" the collective action.1 After discovery takes place, a court then must-at the second stage "make the factual determination as to whether there are similarly—situated employees who have opted—in" and, thus, whether it is appropriate to continue to permit the case to proceed as a collective action. See Sandoz, 553 F.3d at 916 n. 2 (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir.1995), overruled in part on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)); Comer, 454 F.3d at 546-47.

The Plaintiffs' Showing of Similarly Situated

The plaintiffs propose a class of Maine FedEx drivers who drive trucks weighing less than 10,001 pounds, have only a single route, and drive the route full-time.2 FedEx objects to conditional certification, responding that these drivers are not similarly situated under the controlling "economic realities" test, "which requires the court to make `an individualized examination of the multiple factors relating to each driver's employment.'" FedEx Ground Package System, Inc.'s Mem. of Law in Opp'n to Pls.' Mot. for Conditional Cert. at 1 (Docket Item 37) (quoting In re FedEx Ground Package Sys., Inc., Employment Practices Litig., 662 F.Supp.2d 1069, 1083 (N.D.Ind.2009)).3 The plaintiffs assert that the test is not determinative at this conditional certification stage.

The caselaw on this question is divided. Many courts considering conditional certification under the FLSA have not applied the economic realities factors in determining whether proposed class members are similarly situated.4 But other courts have used the factors to determine whether individuals are similarly situated under the FLSA.5 I do not find it useful to try to reconcile the divergent cases (and they probably are not reconcilable). I will have to deal with the economic realities factors conclusively when I determine ultimately whether the drivers are employees or independent contractors, but the question for me now is simpler: whether the drivers in the proposed class are similarly situated. I will use certain of the economic realities factors as they are useful to that inquiry and as the record at this stage makes possible.

The plaintiffs have provided affidavits from six drivers, who have delivered FedEx packages in Maine in trucks weighing less than 10,001 pounds.6 These drivers state that they are required to own a vehicle that prominently displays the FedEx logo, to wear FedEx uniforms, and to report to a FedEx terminal each morning to pick up their packages; and that their trucks are loaded by FedEx employees or FedEx drivers.7 In addition, the drivers had similar job duties (delivery drivers for FedEx)8, were paid according to common policies and practices (payment per-package delivered, pursuant to an "Operator Agreement")9, reported to FedEx terminal managers, and were subject to a common FedEx policy, namely, alleged misclassification of employment status.10 At this initial stage, I conclude that the plaintiffs have presented sufficient evidence to show that they are similarly situated under the FLSA to justify notice to other drivers in the defined class.

Accordingly, I GRANT the plaintiffs' motion for conditional certification of this collective action.

Notice

FedEx asked for time to meet and confer with the plaintiffs on the form of notice if I were to grant the conditional certification. That is a reasonable request. The parties shall file an agreed-upon notice by September 23, 2011. If there are any issues upon which they cannot agree, they shall file a joint memorandum outlining their respective positions on that same date.

SO ORDERED.