The whole trick for a plaintiff (and his lawyers) in a FLSA collective action case is to try to get conditional certification. Once that happens, the stakes automatically escalate for the defendant-employer, often leaving settlement as the most viable and cheapest manner of resolving the case. This process becomes more complicated when there is, as in this case, a possible joint employer scenario. With that said, a federal Judge indicated that she was likely going to conditionally certify a class of truck drivers who claim overtime monies. The case is entitled Johnston et al. v. Titan Logistics & Resources LLC and was filed in federal court in the Western District of Pennsylvania.

The allegation was that the Company paid a day rate (as well as money for expenses) but did not properly (or at all) compute overtime pay when it was due. The Judge noted the low standard for granting conditional certification. She observed that “this is a very liberal standard [for conditional certification], because our government wants to make sure people get paid properly.”

The workers drove light trucks; they transported equipment and employees to and from gas well sites in Pennsylvania, Texas and the Dakotas.

Approximately seventy (70) plaintiffs have opted in to the lawsuit; the issue at a hearing the other day focused on whether the drivers were employed by Titan or another entity, UVL. The plaintiff’s attorney noted that the drivers “were making runs or driving in excess of 300 miles, 500 miles. They were working long, long hours and they were doing so at the direction of UVL. It was really UVL that was dictating the relationship.” The lawyer maintained that the drivers received UVL training materials, adhered to that Company’s policies, utilized UVL apps, received benefits from UVL and were subject to that Company’s disciplinary rules.

The plaintiff wanted employees from both companies included in the class. The Company argued that the entities were not a joint employer. The lawyer contended that there was sufficiently independence between the two entities as to render them truly separate employers. Importantly, he claimed, Titan, not UVL, established the compensation rates of the drivers. The Judge, however, found there was a sufficient connection to warrant sending out notice to drivers from both companies, so the stakes just multiplied, for the employer.

The Takeaway

It is the co-determination of terms and conditions of employment and/or the sharing of a particular group of employees that marks a relationship as one of “joint employer.” That moniker opens up a whole can of worms for the employer(s) as then many more workers can become members of the class.

Think settlement…

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