United States District Court, W.D. Pennsylvania
ANGEL SULLIVAN-BLAKE and HORACE CLAIBORNE, on behalf of themselves and others similarly situated, Plaintiffs,
FEDEX GROUND PACKAGE SYSTEM, INC., Defendant.
PATRICIA L. DODGE (United States Magistrate Judge
a collective action brought under the Fair Labor Standards
Act ("FLSA") by Plaintiffs Angel Sullivan-Blake
("Sullivan-Blake") and Horace Claiborne
"Plaintiffs") against Defendant FedEx Ground
Package System, Inc. ("FedEx"). Plaintiffs
represent that they have brought this action on behalf of
themselves and other similarly situated individuals who have
been employed by FedEx through intermediary employers to
perform delivery services on FedEx's behalf. (ECF No. 1).
Plaintiffs allege that FedEx violated the FLSA by failing to
pay them overtime compensation. (Id.).
before the Court is Plaintiffs* Motion for Issuance of Notice
Under § 216(b) of the FLSA ("Motion") seeking
conditional certification of a proposed nationwide collective
action (excluding Massachusetts) of all FedEx delivery
drivers who worked through an independent service provider
("ISP"). (ECF No. 10). For the reasons that follow.
Plaintiffs" Motion will be granted in part and denied in
FedEx Operations and Business Model
a Delaware Corporation with its principal place of business
in Coraopolis, Pennsylvania, operates a nationwide package
pickup and delivery business. (ECF No. 1 ¶¶ 4, 7).
FedEx contracts with thousands of small businesses whose
employees carry out the physical pickup and delivery of
packages. (ECF No. 29 at 1). Since long before 2014, FedEx
has contracted only with incorporated businesses for delivery
services, and does not employ any drivers for such services.
(ECF No. 29-2 ¶ 10). FedEx's Form 10-K for the
fiscal year ending May 31, 2016 ("10-K") reflects
that FedEx "is involved in numerous lawsuits . . . where
the classification of its independent contractors is at
issue." (ECF No. 11-3 at 3). These lawsuits involve a
contractor model which FedEx has not operated since 2011.
The ISP Model
2010, FedEx began transitioning into a new negotiated
agreement under which FedEx's contractors are known as
Independent Service Providers ("ISPs"). (ECF No. 29
at 1). According to its 10-K, FedEx expects transition to the
ISP model to be completed nationwide by 2020. (ECF No. 11-3
at 3). Under this model, FedEx contracts with ISPs, i.e.,
independent corporations with vehicles, drivers, and other
employed personnel, that provide pickup and delivery services
for FedEx. (ECF No. 29-2 ¶¶ 4, 5). According to
FedEx, the ISPs:
Ensure that all of their drivers are treated as employees of
the ISP (id. ¶ 14);
Agree to comply with all federal, state, and local employment
Retain "sole and complete discretion in the staffing,
selection, hiring, training, supervision, assignment, hours
and days worked, discipline, compensation, benefits, and all
other terms and conditions of employment" of their
employees. (Id. ¶ 15).
to the Complaint, Plaintiff Sullivan-Blake is a resident of
Texas and worked as a delivery driver for FedEx through an
ISP from approximately November 2015 through October
2018. (ECF No. 1 ¶3). Plaintiff Claiborne
resides in North Carolina and has worked as a delivery driver
for FedEx through ISPs since approximately 2011.
(Id. ¶ 4). Both Plaintiffs allege that they
were eligible for overtime compensation under the FLSA but
did not receive it. (Id. ¶¶ 3, 4).
have included their affidavits in support of the Motion. In
her affidavit, Plaintiff Sullivan-Blake avers that she has
worked full-time as a delivery driver out of three different
FedEx terminals, all located in Texas, primarily using a van
that was under 10, 000 pounds. (ECF No. 11-1 ¶¶
3-5). When she first started working for FedEx in November of
2015, FedEx paid her by the hour and she received overtime
when she worked over forty hours a week (Id. ¶
7). At the time, she was told by a FedEx manager that she was
being paid by FedEx and that ISPs do not pay drivers by the
hour. (Id. ¶ 9). Starting sometime in January
of 2016, however, FedEx required her to be paid by an ISP.
(Id. ¶ 7). Plaintiff Sullivan-Blake claims that
in order to keep her job she was required to be paid through
an ISP that compensated her at a flat daily rate regardless
of how many hours she worked, even though she frequently
worked more than forty hours a week. (Id.). She also
asserts that after she started to be paid by an ISP for her
FedEx delivery work, she continued reporting to work each
morning and delivering packages for FedEx following the same
mandatory delivery procedures established by FedEx and that
nothing about her job changed. (Id. ¶ 13).
Claiborne's affidavit reflects that he too has worked as
a full-time delivery driver out of three different FedEx
terminals, one located in Virginia and the other two in North
Carolina, using trucks that weighed less than 10, 001 pounds.
(ECF No. 11-2 ¶¶ 2, 11, 13). During his work at all
three terminals, he has been paid through an ISP.
(Id. ¶¶ 2, 14). Plaintiff Claiborne
alleges that he has never been paid any overtime even though
he has regularly worked more than 40 hours each week during
his employment. (Id. ¶ 17).
on their personal observations, Plaintiffs aver that all of
the delivery drivers who worked alongside them were required
to work under various ISPs. (ECF Nos. 11-1 ¶ 8; 11-2
¶ 6, 18). According to their affidavits, all of the
delivery drivers to whom Plaintiffs spoke told them that they
do not get paid overtime for their work. (ECF Nos. 11 -1
¶ 11, 12, 26; 11 -2 ¶ 19). Plaintiffs also allege
that despite working for different ISPs, delivery drivers,
including themselves, wore the same FedEx uniform, drove
delivery vehicles with FedEx logos, and used special FedEx
scanners for tracking packages. (ECF Nos. 11-1 ¶¶
15, 16, 20; 11-2 ¶¶ 7, 8). In her affidavit,
Plaintiff Sullivan-Blake notes that each morning when she
reported to work, package handlers employed by FedEx had
already separated the packages that each delivery driver was
assigned to deliver that day. (ECF Nos. ...