Peña v. Handy Wash, Inc.

28 F. Supp. 3d 1289, 2014 WL 2884559
CourtDistrict Court, S.D. Florida
DecidedJune 18, 2014
DocketCase No. 14-20352-CIV
StatusPublished
Cited by4 cases

This text of 28 F. Supp. 3d 1289 (Peña v. Handy Wash, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peña v. Handy Wash, Inc., 28 F. Supp. 3d 1289, 2014 WL 2884559 (S.D. Fla. 2014).

Opinion

ORDER

CECILIA M. ALTONAGA, District Judge.

THIS CAUSE came before the Court on Plaintiff, Maria G. Peña’s (“Peña[’s]”) Renewed Motion for Certification of Collective Action and for Permission to Send Court Supervised Notice to. Employees of Their Opt-in Rights ... (“Motion”) [ECF No. 26], filed April 7, 2014. The Court has carefully reviewed the Motion; Defendants’ Response in Opposition ... (“Response”) [ECF No. 39]; Plaintiffs Reply ... [ECF No. 44]; supporting exhibits; and applicable law. For the reasons that follow, the Motion is granted.

I. INTRODUCTION1

Plaintiff, for herself and on behalf of a collective class, has brought a claim for failure to pay overtime compensation against Defendants, Handy Wash, Inc. (“Handy Wash”); Zuni Transportation, Inc. (“Zuni”); ' and Jorge Azor (“Azor”) (collectively “Defendants”), pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. section 216(b). (See generally Compl.). Plaintiff seeks declaratory relief in Count II. (See id. 6-8). Five other individuals have filed Notices of Consent to join this action as party plaintiffs: Hugo Ramirez-Valandia (“Ramirez-Valandia”), Mercy Carriel (“Carriel”), Arturo Labrada (“Labrada”), Fabio Gonzalo Valencia (“Valencia”), and Fernando Bernales (“Bernales”) (collectively the “opt-in plaintiffs”). (See generally Declarations and Notices of Consent to Join (“Notices of Consent”) [ECF Nos. 5-1, 7-1, 8-1, 11-1 & 11-2]).

Defendants provide paratransit service throughout South Florida, including offering nonemergency ambulatory and non-ambulatory transportation to clients and patients. (See Compl. ¶¶ 2-4, 8-9). Zuni contracted with Miami-Dade County to offer paratransit service through a Paratran-sit Transportation Services Contract .. (“Paratransit Contract”) [ECF No. 40-1]. (See also Affidavit of Jorge Azor (“Azor Affidavit”) ¶ 9 [ECF No. 40]). In furnishing this paratransit service, Defendants retain employee drivers to complete Zuni routes, as well as independent contractor drivers who are paid at per-passenger rates without compensation for overtime worked. (See Compl. ¶¶ 14-15; Azor Aff. ¶¶ 10, 35-37). Despite the relatively simple, low-paying driver positions that Plaintiff and the class she seeks to represent held, Defendants misclassified these employees as independent contractors, circumventing federal law requiring the payment of overtime compensation and other benefits. (See Compl. ¶¶ 15-16). Defendants’ annual gross revenue derived from interstate commerce is believed to be over [1293]*1293$500,000 per year during the relevant time periods. (See id. ¶ 7).

In 2008, Defendants hired Peña to work as a driver. (See id. ¶ 10). Defendants required her to sign an independent contractor agreement, setting Peña’s compensation and controlling all aspects of her employment. (See Azor Aff. ¶¶ 12, 14; id., Peña Independent Contractor Agreement (“ICA”), 1-4 [ECF No. 40-3]). Peña worked ten to twelve hours per day, Monday through Friday, and worked an additional ten to twelve hours two weekends each month, averaging sixty hours a week. (See Compl. ¶ 16). Given her work schedule, Peña could not simultaneously maintain other employment. (See id.).

Peña’s job duties included picking up clients and patients and driving them to designated locations (see id. ¶¶ 10, 12); adhering to the daily schedule for pick-ups and drop-offs assigned by Defendants in a “Daily Trip Log” (Mot., Ex. Cl, Declaration of Maria G. Peña (“Peña Declaration”) ¶ 12 [ECF No. 26-2]); cleaning and maintaining the vehicle to ensure it passed vehicle inspections (see Compl. ¶ 12); and following Defendants’ policies and procedures of employment (see id.). Peña also wore a uniform shirt with Defendants’ logo (see id. ¶ 12) and drove a vehicle owned or leased by Defendants with the words “Zuni Transportation” appearing on the vehicle’s side (see id.;' Peña Decl. ¶6). Defendants contributed to or paid for Peña’s automobile insurance and provided her with a Nextel phone to communicate with Defendants’ dispatchers. (See Compl. ¶ 13; Peña Deck ¶ 20). Peña also used her personal cell phone to communicate with clients and patients regarding pick-ups and drop-offs. (See Peña Deck ¶ 19).

Before starting work, Defendants required Peña to pass a background check and successfully complete training courses in defensive driving, courtesy driving, Americans with Disabilities Act awareness, and passenger assistance. (See id. ¶ 18). Defendants also accompanied and supervised newly hired employee drivers, including Peña, for approximately four hours at the beginning of each driver’s employment. (See id.).

Peña seeks to represent and have notice sent to the following class of drivers:

you are or were a driver for Handy Wash, Inc. d/b/a Independent Drivers Association, Zuni Transportation, Inc., and/or Jorge Azor, from January 30, 2011 to the present who worked more than 40 hours in a workweek and were paid as an independent contractor or did not receive overtime pay calculated at time and one-half your regular rate of pay....

(Mot., Ex. D, 1 (“Notice Form”) [ECF No. 26-7]). The opt-in plaintiffs and prospective class are or were drivers employed by Defendants on a per-passenger rate, who held similar positions-to Plaintiff, and who worked in excess of forty (40) hours during one or more work weeks but did not receive overtime compensation during the relevant time periods. (See Compl. ¶¶ 1, 14-16, 18). Plaintiff has submitted Declarations from herself and four other drivers who have stated they wish to join the suit. (See generally Mot., Exs. C1-C5 (“Plaintiffs Declarations”) [ECF Nos. 26-2 to 26-6]).

Plaintiff asserts she and the proposed class of current and former drivers exercised little to no discretion in their daily duties but were all erroneously classified as independent contractors so Defendants could avoid paying overtime compensation. (See Mot. 2-3, 5-6 (citing to Pk’s Decís.)). According to Peña, drivers’ daily routines were substantially similar: they would transport clients and patients between pick-up and drop-off locations as assigned [1294]*1294by Defendants. (See Peña Decl. ¶¶ 7, 24, 26). Independent contractor drivers did not require special skills; they lacked control over assignments; and they did not exercise discretion or management decisions, instead following instructions and assignments provided by Defendants: (See id. ¶¶ 17, 21-22). All drivers were evaluated based on the same set of standards, and all routinely worked in excess of forty hours a week in order to complete assigned Daily Trip Logs. (See id. ¶¶ 16, 24-27; see generally PL’s Decís.).

According to Defendants, the Motion should be denied for several reasons. Defendants challenge the sufficiency of the Declarations Plaintiff and the opt-in plaintiffs rely upon to show the misclassified independent contractor and employee drivers are “similarly situated.” (Resp. 3; see id. 5-10). Defendants insist the misclassi-fication claims of Plaintiff and the proposed class will require highly individualized, fact-intensive analysis that defeats the efficiencies of collective treatment (See id. 3, 10-12).

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Cite This Page — Counsel Stack

Bluebook (online)
28 F. Supp. 3d 1289, 2014 WL 2884559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pena-v-handy-wash-inc-flsd-2014.