United States District Court, S.D. Indiana, Indianapolis Division
CATHY SWAFFORD and RICK WOEHLECKE, individually and on behalf of others similarly situated, Plaintiffs,
CENTRAL TRI-AXLE INC., Defendant.
ORDER ON MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE
ACTION AND FACILITATE NOTICE
WALTON PRATT, JUDGE
matter is before the Court on a Motion to Conditionally
Certify a Collective Action and Facilitate Notice Pursuant to
29 U.S.C. § 216(b) filed by Plaintiffs Cathy Swafford
(“Swafford”) and Rick Woehlecke
“Plaintiffs”) (Filing No. 22).
Plaintiffs previously were employed by Defendant Central
Tri-Axle, Inc. (“CTI”) as dump truck drivers.
Plaintiffs generally worked fifty to sixty-six hours per week
for CTI, yet CTI failed to accurately record their hours
worked and failed to pay Plaintiffs overtime premium for
overtime hours worked. Because they were not paid overtime
wages and suffered other wrongful deductions, Plaintiffs
initiated this lawsuit against CTI under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201,
et seq., and the Indiana Wage Payment, Wage
Deductions, and Wage Claim statutes, Ind. Code §§
22-2-5-1, et seq.; 22-2-6-1, et seq.;
22-2-9-1, et seq. Plaintiffs ask the Court to
conditionally certify a collective action for the FLSA claim
and permit notice to others who similarly have worked or are
working for CTI as drivers and who have not been paid for
overtime work. For the following reasons, the Court
GRANTS Plaintiffs' Motion to
Conditionally Certify a Collective Action and Facilitate
an Indiana corporation with its principal place of business
in Edinburgh, Indiana. CTI hauls aggregate materials from
various quarries within Indiana to its customers' sites.
In order to provide these hauling services, CTI employs
individual drivers. These employees drive equipment,
including dump trucks, and transport materials such as stone,
gravel, and dirt to various locations throughout Indiana
(Filing No. 39-1 at 1).
employed Swafford as a dump truck driver from approximately
June 2014 to April 2016. As a driver, Swafford drove
CTI's dump trucks. She generally arrived at CTI's lot
each day between 5:30 a.m. and 5:45 a.m., and was often one
of the first drivers there. After arriving at work in the
morning, Swafford would warm up her truck and do a walk
around inspection. She was required to complete a pre-trip
inspection of the truck, which involved a visual inspection.
If Swafford determined that the truck required additional air
in the tires, replaced lights, or other general maintenance
or safety repairs, Swafford was responsible for ensuring that
the truck received whatever maintenance was required to be
ready for service. Swafford was instructed that her job
required her to drive to a gravel pit to pick up her hauls
for the day. Most gravel pits were between fifteen to twenty
minutes away but could be as far as two hours away. No time
records were kept for Swafford's work prior to her first
run (Filing No. 23-1 at 1-2).
end of the workday, Swafford drove her truck back to
CTI's lot, filled it up with fuel, cleaned out the truck,
locked the truck, completed paperwork, and returned the
paperwork to the office. Then she would leave work. No time
records were recorded or maintained for these work duties.
Id. at 2. Swafford generally worked ten to twelve
hours each day, five days a week, and she worked an
additional six hours on some Saturdays. Her paystubs did not
reflect all the hours she worked in the week. CTI did not
track all of the hours Swafford actually worked, and, as a
result, Swafford was not paid the required overtime rate for
all hours worked in excess of forty hours in a single
workweek. Id. at 2-3.
worked with approximately forty other drivers at CTI, and
based on her observations of and discussions with other
drivers, Swafford understands that the other drivers
performed similar job duties, were subject to the same rules
and directives, were subject to the same timekeeping
practices, and were paid based on the same pay plan.
Id. at 3.
employed Woehlecke as a dump truck driver from approximately
May 2010 to July 2016 (Filing No. 23-2 at 1). The
facts concerning Swafford's employment experience at CTI
noted above are equally applicable to Woehlecke and his work
experience at CTI. Id. at 1-3.
filed this lawsuit against CTI on January 27, 2017. In late
February 2017, Plaintiffs received a letter from CTI, which
explained, “We have found an error on the payroll in
which we have issued you a check. You will need to come in
and sign for the check. If you have questions please give the
office a call.” (Filing No. 23-1 at 3-4;
Filing No. 23-2 at 3.) This letter was sent because
of a U.S. Department of Labor investigation and settlement
arising out of CTI's violation of the FLSA. Woehlecke
talked with multiple current drivers for CTI who told him
that at the end of the workday on February 28, 2017, CTI
offered them a check as payment for previously unpaid
overtime wages in exchange for a signed release (Filing
No. 23-2 at 3).
March 1, 2017, Woehlecke drove to CTI's office and asked
to see the documents relating to the letter he had received.
CTI's fleet manager showed Woehlecke a document from the
Department of Labor, which stated that by signing the
document, Woehlecke was releasing his claims against CTI in
exchange for approximately $235.00 in unpaid overtime wages.
Id. at 3-4.
acknowledges that the U.S. Department of Labor conducted an
audit to determine its compliance with the FLSA regarding
CTI's drivers. The Department of Labor looked at a
particular timeframe and determined that approximately sixty
drivers were due overtime pay. To resolve the matter, CTI
agreed to provide a fixed payment to the drivers, which
included liquidated damages. CTI asserts that forty-nine
drivers have “cashed checks” provided as a result
of the Department of Labor investigation (Filing No. 39-1
at 2; Filing No. 44-1).
the FLSA, an employee is permitted to maintain a collective
action for “unpaid overtime compensation . . . for and
in behalf of himself . . . and other employees similarly
situated.” 29 U.S.C. § 216(b). The “District
Court has the discretion to authorize notice to similarly
situated employees so that they may opt-in to a class.”
Carter v. Indianapolis Power & Light Co., 2003
U.S. Dist. LEXIS 23398, at *7 (S.D. Ind. Dec. 23, 2003).
“Such a collective action differs significantly from a
Rule 23 class action. Potential class members in a collective
action must affirmatively opt-in to be bound, while
in a Rule 23 action they must opt out [to] not be
bound.” Cheesman v. Nexstar Broad. Grp., Inc.,
2008 U.S. Dist. LEXIS 42265, at *3 (S.D. Ind. May 27, 2008)
(emphasis in original). The standards governing class
certification under Rule 23 are not applicable to FLSA
collective actions. Id. at *5.
in the Seventh Circuit engage in a two-step inquiry to
determine whether an FLSA action may proceed as a collective
action. Id. The first step is called the
“notice stage” and “involves an analysis of
the pleadings and affidavits which have been submitted to
determine whether notice should be given to potential class
members.” Id. (quoting Carter, 2003
U.S. Dist. LEXIS 23398, at *8). “The second step, which
usually occurs after discovery has largely been completed,
allows a court the opportunity to determine whether the ...