United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTION FOR CONDITIONAL CERTIFICATION and DENYING MOTIONS TO STRIKE
MARCIA S. KRIEGER, Chief District Judge.
THIS MATTER is before the Court on the Plaintiffs' Motion for Conditional Certification and Hoffman-La Roche Notice (#48), the Defendants' Response (#59),  and the Plaintiffs' Reply (#63).
The Defendants, Act Fast Delivery of Colorado, Inc. and Powerforce of Colorado, Inc.,  provided delivery services for businesses operating in Colorado. The Defendants were based in Denver, Grand Junction, Pueblo, Cortez, Fort Collins, and Greely.
The Plaintiffs, Michael Bryant and Domingo Ruiz, are former delivery drivers of the Defendants. For the duration of their employment by the Defendants, Mr. Ruiz and Mr. Bryant were assigned to provide deliveries for OmniCare Pharmacy. Mr. Ruiz and Mr. Bryant primarily delivered prescription drugs and medical equipment to nursing homes. The Defendants set their schedules, which typically required them to work 50 hours per week. During their shifts, the Plaintiffs were required to report to OmniCare's warehouse, pick up a set of deliveries, make those deliveries according to OmniCare's instructions, and then return to the warehouse for their next set of deliveries. This process was repeated until the end of the shift. Mr. Ruiz made deliveries in Pueblo and Mr. Bryant made deliveries in Pueblo and in the Denver area.
The Defendants classified the Plaintiffs as "independent contractors" and paid them based a predetermined rate for each delivery they completed. The only way that the Plaintiffs could make more money was to make more deliveries. They were not compensated for travel time nor for hours in excess of 40 worked in a week. In addition, the Defendants maintained control over the Plaintiffs' schedules, training, supervision, directing how to perform the work, and discipline. For example, the Defendants required the Plaintiffs to log-in for every shift though a portable scanner or on their cell phones; to complete paperwork for every delivery; and to wear a shirt with the company logo while on duty. The Plaintiffs allege that they were required to work so many hours that they were effectively precluded from working for any other employer. According to the Plaintiffs, the only skills required to be a delivery driver are the ability to drive a car and use a cell phone.
The Plaintiffs allege that although the Defendants classified them as "independent contractors, " they were actually the Defendants' "employees, " and were therefore subject to the protections afforded by the Fair Labor Standards Act (FLSA). Under this legal premise, the Plaintiffs assert that the Defendants violated the FLSA, 29 U.S.C. §§ 206(a), 207(a), by failing to pay them minimum wage and overtime compensation. The Plaintiffs also assert a claim under the Colorado Wage Claim Act, Colo. Rev. Stat. §§ 8-4-101, et seq. 
The Plaintiffs now seek to certify this action as a "collective action, " brought on behalf of all current and former delivery drivers who performed work for the Defendants in Colorado during the three-year period before the filing of the complaint up to the date the court authorizes notice. The Plaintiffs allege that the Defendants had a company-wide policy of classifying their delivery drivers as independent contractors and therefore improperly denied other drivers minimum wage and overtime compensation.
Section 216(b) of the Fair Labor Standards Act provides a unique procedural mechanism allowing "collective" actions for minimum wage and/or overtime violations. These actions "may be maintained against any employer... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." Id. Unlike class actions under Rule 23 of the Federal Rules of Civil Procedure, an FLSA "collective class" includes only individuals who expressly opt in to the class in writing. Id.
The Tenth Circuit has approved the use of a two-step, case-by-case process for determining whether putative employees are "similarly situated" to the named plaintiff(s) for purposes of § 216(b). See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102-1105 (10th Cir. 2001). At the first step, the Court must make an initial "notice" determination of whether the named plaintiff(s) and the opt-in "class" are "similarly situated." Id. at 1102. That is, the Court must determine whether a collective action should be certified for purposes of sending notice of the action to potential class members. This determination requires "nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Id. The Court need only consider the substantial allegations of the complaint, along with any supporting affidavits or declarations. See Id. At the conditional certification stage, the Court does not weigh evidence, resolve factual disputes, or rule on the merits of the plaintiffs' claims. The standard at the notice stage is "fairly lenient." Thiessen, 267 F.3d at 1103. If the Court conditionally certifies the class, putative class members are provided with notice and the opportunity to opt in to the action, and the matter proceeds as a representative action throughout discovery. Hoffman-La Roche Inc. v. Sperling, 493 U.S. 164, 170-71 (1989); Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001).
The second step for class certification under § 216(b) demands a higher level of scrutiny. At the second step, often prompted by a motion to decertify by the defendant at the conclusion of discovery, the Court examines the "disparate factual and employment settings of the individual plaintiffs." Thiessen, 267 F.3d at 1102-03. The Court analyzes several factors, including (1) disparate factual and employment setting of the individual plaintiffs; (2) the various defenses available to the defendant, which appear to be individual to each plaintiff; (3) fairness and procedural considerations; and (4) whether the plaintiff made any requisite statutory filings before bringing suit. Id. at 1103.
Here, the Plaintiffs request that the Court conditionally certify the following "opt-in" class:
[a]ll current and former delivery drivers classified as independent contractors who performed work for Defendants in Colorado during the three-year period before the filing of this ...