Welcome
Business & Practice

FedEx Loses Bid to Bounce Lichten & Liss-Riordan From Wage Case

May 22, 2020, 6:41 PM

FedEx Ground Package System Inc. can’t disqualify Lichten & Liss-Riordan PC from a nationwide driver-misclassification collective action, a Pennsylvania federal court ruled.

LLR’s representation of the plaintiffs in this case doesn’t conflict with its duty to clients in another action against FedEx in New Jersey, Judge Robert J. Colville of the U.S. District Court for the Western District of Pennsylvania said Thursday.

The court denied FedEx’s motion to disqualify the firm, and it cleared the plaintiffs to notify more than 150,000 drivers about the chance to opt into the conditionally certified collective.

LLR represents Angel Sullivan-Blake and Horace Claiborne in a Fair Labor Standards Act collective action alleging that FedEx is liable as a joint employer for overtime owed to drivers who “nominally work for” independent and contracted service providers “set up on paper” by the company “to insulate itself from its employment obligations.”

FedEx argued that LLR had a conflict in this case because it represents the some of the so-called “middle-tier” service providers, who are also drivers, in New Jersey on similar claims in Carrow v. FedEx Ground Package Systems. The shipping giant argued that LLR is “exposing its clients in the Carrow case to liability” by continuing to litigate this case.

But the court won’t have to determine that the service providers who belong to the Carrow class violated the FLSA to show that FedEx is liable for the alleged violations here, it said.

The plaintiffs in this case only have to prove that they were underpaid and FedEx is their joint employer to prevail on their claims. This might involve an inquiry into how much the service providers paid the plaintiffs, but it won’t require any determination that a joint employment relationship existed between them, the court said.

Moreover, the plaintiffs and the Carrow class both seek to hold FedEx is liable in their respective cases, so neither “has anything to gain from proving that the other is liable,” the court said.

There’s also no risk that LLR would elicit damaging testimony from any Carrow class members, the court said. LLR might have ask the service providers about whether they paid the plaintiffs overtime, but can limit its questioning to establishing FedEx’s status as a joint employer.

FedEx is free to seek indemnification from the service providers if the plaintiffs succeed in proving it’s liable in this case, the court noted. But its right to recover relies on determining that the service providers violated the law, so there’s no guarantee it would prevail.

Attorneys from FedEx and Wheeler Trigg O’Donnell LLP represent the company. Attorneys from LLR, Winebrake & Santillo LLC, Law Offices of Brian D. Gonzales PLLC, and Lujan Law Office represent the FLSA collective members.

The case is Sullivan-Blake v. FedEx Ground Package Sys., Inc., W.D. Pa., No. 2:18-cv-01698, 5/21/20.

To contact the reporter on this story: Kathleen Dailey at kdailey@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.