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Young v. Act Fast Delivery of West Virginia, Inc.

United States District Court, S.D. West Virginia, Beckley Division

August 10, 2017

ERIC YOUNG, Plaintiff,
v.
ACT FAST DELIVERY OF WEST VIRGINIA, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGER UNITED STATES DISTRICT JUDGE

         The Court has reviewed the Plaintiff's Motion for Conditional Certification and Hoffman-La Roche Notice (Document 31), the Defendant Act Fast Delivery, Inc.'s and Act Fast Delivery of West Virginia, Inc.'s Response in Opposition to Plaintiff's Motion for Conditional Certification and Hoffman-La Roche Notice (Document 35), and the Plaintiffs' Reply to Act Fast's Response in Opposition to Plaintiffs' Motion for Conditional Certification and Hoffman-La Roche Notice (Document 37). The Court has also reviewed the Omnicare Defendants' Memorandum in Opposition to Plaintiff's Motion for Conditional Certification and Hoffman-La Roche Notice (Document 36) and the Plaintiffs' Reply to Omnicare's Response in Opposition to Plaintiffs' Motion for Conditional Certification and Hoffman-La Roche Notice (Document 38). In addition, the Court has reviewed all attached exhibits. For the reasons stated herein, the Court finds that the motion for conditional certification and issuance of notice should be granted.

         FACTUAL ALLEGATIONS

         The Plaintiff, Eric Young, brought this purported class action against Defendants Act Fast Delivery of West Virginia, Inc.; Act Fast Delivery, Inc.; Home Care Pharmacy, LLC doing business as a variety of entities including but not limited to Omnicare of Nitro and/or Omnicare of Nitro, West Virginia; Compass Health Services, LLC doing business as a variety of entities including but not limited to Omnicare of Morgantown and/or Omnicare of Morgantown, West Virginia; Omnicare, Inc.; and other John Doe Defendants. Mr. Young alleges[1] that the Defendants' business included the delivery of medical and pharmaceutical products, and that he was employed as a dispatcher and delivery driver for the Defendants from approximately July 2012 to July 2015. Mr. Young worked out of the Defendants' Nitro, West Virginia, location as a delivery driver and made deliveries to a number of cities throughout West Virginia.

         Mr. Young further alleges that, upon beginning his employment with the Defendants, he was required to sign an “Independent Contractor Agreement, ” and that it was his understanding that all employees hired for similar positions had to sign the same agreement. (E. Young Dec. at ¶ 5.) (Document 31-1). Because of this agreement and his classification by the Defendants as an independent contractor, he was paid based on the number of deliveries made or routes driven in the course of a week rather than by the hour. He also alleges that he was required to work more than forty (40) hours in the course of a week without receiving any overtime pay and was not permitted to negotiate his pay. He had no control over the schedule of his workday, the assignation of his deliveries, the specific routes he was to take, or even the order in which he made deliveries. All of those were controlled and specified by the Defendants. He was also required to purchase a uniform with the Defendants' logo and wear it during every delivery, the cost of which was deducted from his pay. Therefore, Mr. Young alleges that he and other delivery drivers were subjected to the Defendants' daily control and direction in the manner in which he performed his work such that the independent contractor classification was incorrect and that he was in an employer-employee relationship with the Defendants. Five other former employees also submitted declarations describing the same or similar experiences. (Document 31-1, Ex. 2.)

         The Plaintiff seeks to bring a collective action under the Fair Labor Standards Act (FLSA).

         In his complaint, Mr. Young defines the FLSA class as follows:

All current and former delivery drivers classified as independent contractors who performed work for the Defendants in West Virginia during the three-year period before the filing of this Complaint up to the date the Court authorizes notice.

(Pl.'s Compl. at ¶ 61.)

         The Plaintiff filed his motion seeking conditional class certification of his collective FLSA action on February 6, 2017. Both the Act Fast Defendants and the Omnicare Defendants filed their responses in opposition on February 21, 2017, and the Plaintiff replied to both on February 28, 2017. The motion is fully briefed and ripe for review.

         APPLICABLE LAW

         The FLSA permits employees with claims for unpaid minimum wages or unpaid overtime compensation to bring actions against the employer on behalf of themselves and similarly situated employees. 29 U.S.C. § 216(b). Affected employees must give consent in writing to become parties to an FLSA collective action. Id. Courts may facilitate notice to potential plaintiffs. Purdham v. Fairfax Cty. Pub. Sch., 629 F.Supp.2d 544, 547 (E.D. Va. 2009). “The ‘notice' stage of an FLSA collective action is also known as the ‘conditional certification' stage, ” and typically takes place early in litigation before the completion of discovery. Id. It is during this stage that the district court determines “‘whether the plaintiffs have demonstrated that potential class members are similarly situated, ' such that court-facilitated notice to the putative class members would be appropriate.” Syrja v. Westat, Inc., 756 F.Supp.2d 682, 686 (D. Md. 2010) (quoting Camper v. Home Quality Mgmt. Inc., 200 F.R.D. 516, 519 (D. Md. 2000)). It is the plaintiff's burden to demonstrate that a potential class of similarly situated individuals exists, and the plaintiff must produce some factual evidence in support of conditional certification. Purdham, 629 F.Supp.2d at 548. The standard is “fairly lenient” at the conditional certification stage. MacGregor v. Farmers Ins. Exch., Civil No. 2:10-cv-03088, 2012 WL 2974679, *1 -2 (D.S.C. July 20, 2012) (quoting Anderson v. Cagle's, Inc., 488 F.3d 945, 953 (11th Cir.2007). After discovery, a defendant may move to decertify the class. “At that point, the court makes a factual determination as to whether the class is truly ‘similarly situated.'” Id. at 547.

         DISCUSSION

         The Plaintiff argues that he has made a sufficient factual showing for the Court to conditionally certify the class and issue notice to delivery drivers who were employed by the Defendants in West Virginia. He attached a proposed notice of claim and consent form to be mailed to potential plaintiffs, explaining the grounds for the lawsuit and the procedure and consequences of the decision to opt-in. The Plaintiff argues that he has provided sufficient evidence to support a showing that a similarly situated ...


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