This is an interesting case and a (possible) double victory for the employer. A rarity. An employer-defendant, Dynamex, Inc. has filed a motion to eliminate more than 30 opt-ins from a conditionally certified collective action under the FLSA seeking back due wages for overtime violations. On that very day, the employer won the right to access some of the opt-in members’ tax records. The case is entitled Juan Saravia v. Dynamex Inc. and was filed in federal court in the Northern District of California.
The Company wanted some opt-ins eliminated because they failed to show up for their depositions and others because they withdrew their consent to participate in the suit. The Company also challenged opt-ins because they were not part of the originally proposed class definition or they did not opt-in on time or they were contracted to work outside of California or were deceased. The Company urged to the Court that “absent the requested dismissal, this court will be allowing the inclusion of eighteen (18) additional opt-ins at trial in a case where individualized determinations are a necessity and the interest and diligence of the opt-ins is at question.”
The theory of the case is that although the Company labeled the workers as independent contractors, the Company controlled the routes, schedules, customers and other details for thousands of U.S. drivers, which would show too much control, meaning that they were actually statutory employees. At this time, 155 drivers have opted in.
On that same day, as luck would have it, the Judge ordered 36 collective action members to turn over their federal tax records relevant to their claims from 2008-present when they were contractors for the Company. The class members had objected on invasion of privacy grounds and that the demand was a pretext for harassment. The court disagreed, concluding that the plaintiffs’ privacy interests did not supersede the Company’s interest in preparing and advancing a fully formed defense on the merits of the case.
The Court aptly and cogently found that “the tax records that Dynamex seeks will provide probative information indicating the structure of each plaintiff’s businesses, the nature of their income and expenses, and the extent of their gross income, which will be useful in demonstrating whether each of the opt-ins was properly classified as an ‘independent contractor’ or not.”
This is a great victory, securing the tax returns. Moreover, and more importantly perhaps, it tilts the momentum of the case in favor of the employer. Regretfully, most times, the employer is placed in the unenviable position of being reactive and always warding off the next attack by plaintiffs. Maybe the plaintiffs do not want to open up their tax returns for scrutiny. Maybe this will cause the plaintiffs to want to settle or be more reasonable in any settlement demands.
I applaud the tactic. Let it be a signal to other defendant counsel out there.