United States District Court, E.D. Kentucky, Central Division, Lexington
CRAIG WILLIAMS, on behalf of himself and all others similarly situated, et al., Plaintiffs,
KING BEE DELIVERY, LLC, and BEE LINE COURIER SERVICES, INC., Defendants.
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge.
Craig Williams, John Williams, and Fred Berry filed this
action, on behalf of themselves and all others similarly
situated, against Defendants King Bee Delivery, LLC and Bee
Line Courier Services, Inc., seeking redress for violations
of the Fair Labor Standards Act (“FLSA) and Kentucky
Wage and Hour Act (“KWHA”). Plaintiffs now move
the Court to conditionally certify their FLSA claim for
unpaid overtime wages as a collective action. [DE 32].
Meanwhile, Defendants urge the Court to dismiss
Plaintiffs' claim for unlawful deductions in violation of
the KWHA. [DE 62]. Both Motions are now fully briefed and
ripe for the Court's review. [DE 59, 63, 66, 69]. For the
reasons stated herein, both Motions are hereby
FACTUAL AND PROCEDURAL BACKGROUND
provide delivery services to pharmacies and hospitals located
in Kentucky, Ohio, and Indiana. [DE 58, p. 3, ¶ 13]. As part
of their business, Defendants retain delivery drivers to
load, transport, and deliver pharmaceuticals and other
materials to their clients. [Id.]. Plaintiffs worked
as delivery drivers for Defendants, operating out of their
Kentucky warehouses. [Id. at p. 2, ¶ 7-10].
Independent Contractor Agreement governed the relationship
between Plaintiffs and Defendants. [DE 33-1, 33-2, 33-3].
Plaintiffs agreed not to hold themselves out as
“employee[s] or partner[s] of [Defendants] or as having
authority to represent [Defendants], but only as 
independent delivery contractor[s] to [Defendants] for the
purpose of performing this Agreement.” [Id.].
Defendants in turn, relinquished the right to “exercise
any direction, control or determination over the manner,
means or methods of [Plaintiffs'] activities and
objectives in operating [their] business” or restrict
Plaintiffs from “being concurrently or subsequently
engaged in another delivery service business or other
occupation.” [Id. at 6].
typically arrived at Defendants' warehouses, along with
fifteen to twenty other delivery drivers, between 4:30 a.m.
and 4:45 a.m. [DE 33-3, 33-6]. Each driver received a
manifest from Defendants, listing the deliveries that they
were supposed to make that day and a time window for making
each delivery. [Id.]. Plaintiffs then loaded their
trucks with the appropriate packages and began their daily
routes. [Id.]. They carried GPS trackers with them
throughout the day so that Defendants could track their
did not compensate Plaintiffs based on the number of hours
worked. [Id.]. Instead, Plaintiffs received a flat
rate per delivery route or a sum based on the number of
deliveries made per route. [Id.]. This compensation
scheme did not vary when Plaintiffs worked more than forty
hours per week, as they often did. [Id.].
November 2014, Craig Williams spoke with Rusty Quill, an
Operations Managers in Lexington, about his independent
contractor classification and showed him a
workers'-rights pamphlet produced by Kentucky Jobs for
Justice. [Id. at p. 9, ¶ 43-44]. Quill later
mailed this pamphlet to Defendants' headquarters in
Louisville. [Id.]. On December 2, 2014, Williams
discussed this issue with Quill and Jay Baumert, another
Operations Manager, via telephone. [Id. at p. 9,
¶ 45]. Williams stated that he would file a complaint
with a government agency if Defendants did not begin treating
him like an employee. [Id.]. About ten minutes
later, Norman Seger, President of Bee Line and Manager of
King Bee, contacted Williams and informed him that Defendants
would no longer need his services. [Id.].
October 14, 2015, Plaintiffs filed the instant action,
asserting the following claims: (1) unlawful deductions in
violation of the KWHA; (2) unpaid overtime wages in violation
of the FLSA; (3) unpaid overtime wages in violation of the
KWHA; (4) retaliation in violation of the FLSA on behalf of
Craig Williams; (5) discrimination in violation of the FLSA
on behalf of Craig Williams; and (6) wrongful discharge in
violation of public policy on behalf of Craig Williams. [DE
promptly filed a Motion to Dismiss for Failure to State a
Claim. [DE 12]. Plaintiffs rendered that Motion moot by
filing an Amended Complaint. [DE 23, 26]. Defendants then
renewed their Motion to Dismiss. [DE 29]. Shortly thereafter,
Plaintiffs filed a Motion for Conditional Certification of a
Collective Action. [DE 32]. The Court granted Defendants'
request for an extension of time to respond to
Plaintiffs' Motion and tolled the FLSA's statute of
limitations during until Defendants filed their
Response. [DE 40].
August 8, 2016, the Court entered a Memorandum Opinion and
Order granting in part and denying in part Defendants'
Motion to Dismiss. [DE 43]. The Court dismissed
Plaintiffs' claim for unlawful deductions in violation of
the KWHA, as well as their requests for civil penalties and
punitive damages under the FLSA and KWHA. [DE 44]. Plaintiffs
then filed a Motion for Leave to File a Second Amended
Complaint, which the Court granted. [DE 46, 57, 58].
Defendants responded by filing the instant Motion to Dismiss,
again attacking Plaintiffs' unlawful deductions claim.
[DE 62]. This Motion to Dismiss is now before the Court for
review, along with Plaintiffs' Motion for Conditional
Certification. [DE 32, 62]. The Court will evaluate each
Motion in turn.
Motion for Conditional Certification
The Certification Question
enacted the FLSA in 1938 with the goal of ‘protect[ing]
all covered workers from substandard wages and oppressive
working hours.'” Christopher v. SmithKline
Beecham Corp., 132 S.Ct. 2156, 2162 (2012) (quoting
Barrentine v. Arkansas-Best Freight Sys., Inc., 450
U.S. 728, 739 (1981)); see also 29 U.S.C. §
202(a). Chief among the FLSA's provisions is the overtime
wage requirement, which generally obligates “employers
to compensate employees for hours in excess of 40 per week at
a rate of 1½ times the employees' regular
wages.” Id.; see also 29 U.S.C.
above-cited language suggests, “only employees are
entitled to overtime and minimum-wage compensation”
under the FLSA. Keller v. Miri Microsystems, LLC,
781 F.3d 799, 806 (6th Cir. 2015) (observing that
“[t]he FLSA's definition of ‘employee' is
strikingly broad”); Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 326 (1992) (noting that the FLSA
“stretches the meaning of ‘employee' to cover
some parties who might not qualify as such under a strict
application of traditional agency law principles”).
“Independent contractors do not enjoy [the] FLSA's
protections.” Id. However, “[t]he
Supreme Court has recognized … that businesses are
liable to workers for overtime wages even if the company
‘put[s] … an “independent
contractor” label' on a worker whose duties
‘follow the usual path of an
employee.” Id. (quoting Rutherford Food
Corp. v. McComb, 331 U.S. 722, 729 (1947)).
one or more employees” may seek redress for violations
of the FLSA by initiating a collective action “on
behalf of himself or themselves and other employees similarly
situated.” 29 U.S.C. § 216(b). Similarly situated
employees may “opt-into” such suits by
“signal[ing] in writing their affirmative consent to
participate in the action.” Comer v. Wal-Mart
Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) (noting
that this type of suit “is distinguished from the
opt-out approach utilized in class actions under Fed.R.Civ.P.
of FLSA collective actions typically proceeds in two phases.
Comer, 454 F.3d at 546-47. “[A]t the notice
stage, the certification is conditional and by no means
final.” Id. (internal quotations omitted).
“The plaintiff must show only that his position is
similar, not identical, to the positions held by the
putative class members.” Id. (internal
quotations omitted) (emphasis added). “[T]his
determination is made using a fairly lenient standard, and
typically results in conditional certification of a
representative class.” Id. (stating further
that “authorization of notice need only be based on a
modest factual showing”) (internal quotations omitted).
the second stage, following discovery, trial courts examine
more closely the question of whether particular members of
the class are, in fact, similarly situated.”
Id. at 547. The final-certification decision depends
upon “a variety of factors, including the factual and
employment settings of the individual plaintiffs, the
different defenses to which the plaintiffs may be subject on
an individual basis, [and] the degree of fairness and
procedural impact of certifying the action as a collective
action.” O'Brien v. Ed Donnelly Enter.,
Inc., 575 F.3d 567, 584 (6th Cir. 2009) (internal
quotations omitted), overruled on other grounds by
Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (2016).
case sits at the notice stage of the bifurcated-certification
process. Plaintiffs ask the Court to conditionally certify
their FLSA claim for unpaid overtime wages as a collective
action and order notice of the action to all delivery drivers
who were classified as independent contractors while working
for Defendants, thereby providing these individuals with an
opportunity to participate therein. Plaintiffs argue that
such action is appropriate because they are similarly
situated to the putative class members, having worked as
delivery drivers for Defendants and performed the same basic
duties under similar circumstances.
support of this proposition, Plaintiffs Craig Williams and
John Williams submitted declarations, detailing their daily
routine and describing their compensation scheme. [DE 33-3,
33-6]. They insist that other drivers followed a similar
routine and received wages on a similar basis, citing
conversations that they had with unidentified drivers at
Defendants' warehouses. [Id.]. Plaintiffs
bolster this assertion with declarations from two opt-in
plaintiffs, Kevin Berry and Mark Lafferty, who described a
similar experience with Defendants. [DE 33-4, 33-5].
threshold matter, Defendants assert that conditional
certification is inappropriate because Plaintiffs were
properly classified as independent contractors, and thus,
were not entitled to overtime wages under the FLSA. Courts
generally do not evaluate the legality of the challenged
policy or the applicability of an FLSA exemption at this
stage of the certification process. See Bradford v.
Logan's Roadhouse, Inc., 137 F.Supp.3d 1064, 1072
(M.D. Tenn. 2015) (“[T]he court does not resolve
factual disputes, decide substantive issues going to the
ultimate merits, or make credibility determinations” at
the notice stage) (internal quotations omitted); Waggoner
v. U.S. Bancorp, 110 F.Supp.3d 759, 769 (N.D. Ohio 2015)
(“It would be ...