Employment: Notice authorized in FLSA delivery driver overtime suit

Where two delivery drivers made the “modest factual showing” that they were misclassified as independent contractors, the court authorized notice to an identified class of similarly situated persons.

Background

In this Fair Labor Standards Act, or FLSA, action, Kelvin Hunter and Abdul Ngobeh allege that LaserShip Inc., doing business as OnTrac Final Mile and its contractors, acting as joint employers, are misclassifying delivery drivers as independent contractors and failing to pay them overtime wages. Before the court is plaintiffs’ motion for court authorized notice.

Analysis

Based on the plaintiffs’ declarations and the declarations filed in a parallel FLSA litigation that is currently pending in the Southern District of New York, the plaintiffs have made the modest factual showing required at this stage to authorize notice to an identified class of similarly situated persons.

In that regard, the declarations affirm the plaintiffs collectively worked for three master contractors and out of four OnTrac warehouse in two states, do not receive overtime pay and based on their interactions with hundreds of other delivery drivers, know that other delivery drivers who work for different master contractors are subject to similar work requirements and compensation.

The Southern District of New York’s refusal to authorize a collective action does not counsel a different decision. There, despite approximately nine months of discovery before seeking collective certification, plaintiffs failed to produce nearly any information concerning whether there were other proposed class members similarly situated and in light of that discovery, applied a heightened standard. Here, the parties have not engaged in discovery, making it appropriate for the court to apply the “modest factual showing” standard, and the information the plaintiffs have produced is sufficient at this stage to authorize sending notice to prospective opt-in plaintiffs and permit the parties to proceed to discovery.

First-to-file

Given the similarities between plaintiffs’ claims here and in West, OnTrac also seeks to bar this case under a first-to-file rule. The first-to-file rule sanctions an equitable determination made on a discretionary basis that the court first acquiring jurisdiction over a matter should proceed “without interference from other courts under suits subsequently instituted.”

The Fourth Circuit has “no unyielding first-to-file rule,” and when considering

whether to stay its hand under the first-to-file rule, courts in the Fourth Circuit typically balance three factors: (1) the chronology of the filings; (2) the similarity of the parties and (3) the similarity of the issues at stake.

The West action is certainly first in time. This factor weighs in favor of deferring to the West action. Second, OnTrac is the defendant in both cases, and there is some overlap as to the proposed class members in these two actions. As such, this factor weighs against applying the first-to- file bar to this action in its entirety. Third, both cases involve essentially the same legal theories and claims. Given the substantial overlap between the legal issues, this factor tips in favor of applying the first-to-file bar.

Important, however, is that the West court has not yet certified a collective action; and while the renewed motion for collective certification is pending in West, there is no guarantee that a collective action will ever be certified. In any event, at this point, the statutes of limitations are not tolled as to the proposed collective action members in either case until a court certifies the collective action and the prospective plaintiffs opt into the action.

Given the lack of certification in the West action and the running of the applicable statute of limitations as to those New York drivers, the court concludes that the best course at this point is to provide those drivers with the same opportunity to vindicate their rights as their similarly situated counterparts, particularly given the court’s ability to later consider at the de-certification stage whether any opted in New York delivery drivers should remain within the collective action.

Notice

Subject to certain modifications, the court approves the notice form. The court will permit the plaintiff to issue its initial notice, reminder notice, text message notice and electronic mail notice. The court finds the plaintiffs’ proposed 90-day notice period to be reasonable and consistent with notice periods typically provided in this circuit and nationwide.

Hunter v. LaserShip Inc., Case No. 1:24-cv-2345, May 14, 2025. EDVA at Alexandria (Trenga). VLW 025-3-204. 13 pp.