Truck Driver Misclassification Claim Can Move Forward as Collective Action Under FLSA

The United States District Court for the Northern District of Illinois, Eastern Division, recently held that a single truck driver may bring a collective action under the Fair Labor Standards Act (FLSA) after submitting affidavits from three other drivers with the same company alleging they were subjected to common policies and practices.

In Shumate v. Forsage, Inc., a plaintiff truck driver alleged that he and other drivers of Forsage, Inc. were employees of Forsage and that, due to various deductions in pay and long hours, were effectively paid less than minimum wage. Forsage took the position that the drivers were properly classified as independent contractors and Forsage was thus not responsible for ensuring the drivers’ effective wages.

Shumate sought conditional certification under the FLSA, which allows a single employee to bring a collective action on behalf of himself and “other employees similarly situated” if an employer fails to pay the minimum wage to its employees.

While the Seventh Circuit Court of Appeals has not endorsed a specific test to determine authorization of conditional certification of employees, they have acknowledged a two-step test often used by the lower courts within the Circuit.

1) The first step requires the lead plaintiff to make a ‘minimal showing’ that other employees were similarly situated to them, generally requiring affidavits, declarations, deposition testimony, or other documentation which show that the plaintiff and other potential plaintiffs were victims of a policy or plan that violated the law.

Three other Forsage drivers provided affidavits stating they were subjected to common policies, such as deductions in pay, work requirements, and conditions largely echoing those allegations made by Shumate. Upon these affidavits, the District Court granted Shumate’s conditional certification and ordered Forsage to produce a list with contact information for all its drivers over the previous three years so Shumate and the attesting drivers may reach out to them and provide notice of the collective action.

2) The second step of the test takes place after formal discovery and completion of the plaintiff opt-in process (different from the Rule 23 class action process which requires plaintiffs to opt-out of the litigation). After discovery and the opt-in process, the court then engages in a more stringent inquiry to determine whether the plaintiffs are actually similarly situated.

During this step, the Court will undertake comparison of the drivers’ allegations and testimony to determine their veracity and whether such drivers were subjected to the same treatment or policies which violated the FLSA. The District Court will endeavor to compare and contrast the situation of each individual potential plaintiff who opted in to the litigation brought by Shumate in order to determine whether they were each, individually and collectively, victims of the policies and practices of Forsage as alleged by Shumate.

Practical Considerations

Whether workers are employees or independent contractors can be a thorny question, made even more so because regulators’ view of the applicable legal standards tend to shift dramatically when the presidency shifts from Democrat to Republican, or vice versa. The District Court in Shumate has not yet reached that juncture, and this decision largely approaches the issue of conditional class certification under the Fair Labor Standards Act from the evidentiary requirements of plaintiffs. It serves to highlight the relative ease of which employees (or any collection of laborers and contractors) may band together under the FLSA. An argument on the merits of the wage/hour practices of the employer comes after a plethora of formal discovery for any potential plaintiffs. As this decision shows, a collective action under the FLSA, if certified, would require employers to turn over lists of worker contact information and expand greatly expand the litigation. This can expose employers to significant costs and potential damages, all spurred on by the actions of a lone individual.