The Driver Provider Lawsuit

Update - August 17, 2023

Beginning in May, Plaintiffs moved for summary judgment  (judgment as a matter of law without a trial over factual disputes) on a number of the central issues in the case. The Defendants filed motions for summary judgment as well. As of July 17, 2023, summary judgment motions were fully briefed and pending before the Court.

The current summary judgment motion asks the Court to in the Drivers’ favor on the following issues:

1. That Drivers are not exempt from the overtime requirements of the Fair Labor Standards Act (“FLSA”) (addressing Defendants’ asserted defenses that they are not required to pay Drivers overtime. Defendants claim that an emption from overtime applies because they are a “taxicab” business under the Taxicab Exemption and because they operate “retail or service establishments” that pay bona-fide commissions that meet certain pay requirements. Plaintiffs have asserted that they are not entitled to either overtime exemption.

2. That the Driver Provider violated the FLSA’s overtime and minimum wage requirements. These claims cover all Drivers in Arizona, Wyoming, and Utah who filed timely consent to sue forms in 2021. However, Plaintiffs have also asked the Court to allow a second round of FLSA notice and opportunity for additional Drivers to join these claims.

3. That the Driver Provider violated the Arizona Wage Act by not paying Drivers for their pre- and post-trip work. These claims cover all Arizona Drivers from December 6, 2016 to the present, which is approximately 500 Drivers.

4. That the Driver Provider violated the Arizona Minimum Wage Act by not paying Drivers at least the minimum wage for all hours worked. These claims cover all Arizona Drivers from December 6, 2016 to the present, which is approximately 500 Drivers.

5.  That the individual Defendants Jason Kaplan, Kendra Kaplan, and Barry Gross are personally liable for Defendants’ federal and state law violations.

6. That time in between scheduled trips is compensable work time.

7. That Defendants’ violations were willful under federal and state law so that the statute of limitations should be three years, not two.

8. That Defendants do not have a good faith defense under federal or state law so that the court should award Drivers liquidated damages (i.e. double the damages).

Documents Filed with the Court:

• Plaintiffs’ Motion for Partial Summary Judgment is available here.

• Plaintiffs’ Statement of Facts is available here.

• Plaintiffs’ Reply in Support of their Motion for Summary Judgment is available here.

• Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment is available here.

• Plaintiffs’ Controverting Statement of Facts is available here.

The Court previously ruled that Plaintiffs could not bring overtime claims under Arizona law – finding those claims preempted by the federal law. However, the overtime claims for all members of the FLSA class remain in the case. In addition, Rule 23 Class Members (Arizona Drivers) have claims for unpaid straight time (for unpaid pre- and post-trip work) as well as claims for unpaid minimum wages. Plaintiffs believe the Court was incorrect and asked for the right to take an immediate appeal but were turned down. Accordingly, any appeal has to come at the end of the case.  

In addition, the Court has not yet resolved Plaintiffs’ motion seeking a supplemental FLSA notice and opt-in period for Drivers who began working at The Driver Provider after the issuance of the first FLSA Notice in April 2021. If that motion is granted, additional Drivers may be able to join the case and assert claims for unpaid overtime under the FLSA. The federal law allows us to compute overtime claims under the Arizona minimum wage laws – much higher than the federal minimum wage.

The Court has set dates for a 10-day jury trial to begin January 16, 2024, to resolve any of the issues that are not resolved at the summary judgment phase of the case.

We will continue to post updates on the case on this website, so please check back periodically.

UPDATE - February 15, 2023

On January 30, 2023 the Court certified Plaintiffs’ claims for violation of the Arizona Minimum Wage Act as a class action. The claims are for unpaid minimum wages and recordkeeping violations. The class includes the following:

All current and former employees of The Driver Provider who performed chauffeur services in Arizona at any time from December 6, 2016 to the present. Excluded from the class are all owners, managers, supervisors, dispatchers, or other employees whose primary job responsibilities were not the provision of chauffeur services.

To date, Defendants have identified over 470 employees who meet the definition of the class. A notice regarding the certification of these claims will be issued to qualifying class members after the Court approves the form of notice.

In the meantime, Plaintiffs intend to seek class certification regarding their claims for unpaid straight time under the Arizona Wage Act for pre- and post-trip work time that Plaintiffs contend was not compensated. Plaintiffs are also asking the Court to reconsider its dismissal of the Plaintiffs’ overtime claims under Arizona law and will likewise seek class certification of those claims if the Court reinstates the state overtime claim.

For Drivers who were not able to join the federal overtime and minimum wage claims under the Fair Labor Standards Act because they were hired after the notice was issued in 2021, Plaintiffs requested that the Court approve a notice and permit those Drivers an opportunity to join the federal claims. The federal claims include Drivers who worked in Utah, Wyoming, and Arizona. The Court has not yet ruled on that request.

Fact discovery is complete. The case is now in the expert discovery phase, where each sides submits expert reports regarding issues in the case, including the calculation of damages.

The deadline for each side to submit motions asking the Court to resolve certain parts of the case based on the undisputed evidence is May 31, 2023.

Please make sure we have your updated contact information

If you worked for The Driver Provider during the relevant time period (December 6, 2016 to the present) and have relocated since your employment terminated, please provide us your updated contact information by sending an email to: driverproviderlawsuit@martinbonnett.com

Please include your name, telephone number, address, email address, approximate dates of employment, and employment location (Phoenix, Tucson, Utah, or Wyoming).

UPDATE - April 13, 2022

The case is currently in the discovery phase, where each side exchanges information and takes depositions. Plaintiffs have scheduled multiple depositions to take place over the next 90 days and are in the process of reviewing a substantial amount of evidence produced by Defendants. Plaintiffs intend to file motions seeking to certify the Arizona claims as a Class Action under Federal Rule of Civil Procedure 23. If Plaintiffs are successful on that motion, a notice will be issued to Drivers who would be members of that class. After the discovery phase of the case, Plaintiffs intend to seek summary judgment to resolve their claims as a matter of law. The deadline for summary judgment motions is in early 2023.

Additional case updates will be posted on this webpage.

ABOUT THE CASE

This class action and collective action lawsuit seeks to recover unpaid overtime and minimum wages under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”) and Arizona wage statutes. Plaintiffs are chauffeur drivers who work or worked for The Driver Provider. Plaintiffs allege that throughout their employment, they regularly worked more than 40 hours per week but were not paid required overtime wages. Plaintiffs also allege they were not properly compensated for all work time that included, among other things, stocking vehicles with amenities, on call time, standby time, travel time, greeting passengers, pre- and post- trip inspections, and performing basic maintenance. The case is in early stages and these allegations have not been proven. The Driver Provider has denied all liability.

You can review the Complaint HERE

What remedies are sought?

Plaintiffs seek to recover unpaid overtime and minimum wages and equal amount of liquidated damages.

Who does the lawsuit cover?

The Complaint alleges that it covers any former or current employee of The Driver Provider who performed chauffeur services at any time from December 6, 2016 to the present.

Do I have to pay to join the case?

No. The attorneys are handling this case on a contingent basis and will only be paid if there is a settlement or final judgment against Defendants. If Plaintiffs succeed in obtaining a judgment, Plaintiffs will ask the court to order Defendants to pay the reasonable costs and attorneys’ fees.

Can An Employer like The Driver Provider take action against An Employee for joining A lawsuit?

The law prohibits retaliation for joining a lawsuit. If any employee suffers retaliation, the employer may be liable for double the injury caused by retaliation against an employee. Anyone electing to file a Consent to Sue who believes they have received threats or been retaliated against should notify the attorneys representing the Plaintiffs immediately.

What locations are covered by this lawsuit?

Past and present drivers who drove for The Driver Provider anywhere in the U.S., including Arizona, Utah, and Wyoming may be included in this lawsuit.

Who Are the Lawyers Representing the Plaintiffs in this Case?

Martin & Bonnett, PLLC is representing Plaintiffs.

Disclaimer. Plaintiffs’ allegations have not yet been proven and no liability of The Driver Provider has been established. Conditional certification of the FLSA Class has been granted, however the conditionally-certified FLSA class may exclude plaintiffs who have opted into the lawsuit by filing a Consent to Sue or who do not otherwise meet the definition of a class member. Plaintiffs have also sought class certification of state law wage claims for employees who worked in Arizona under Rule 23 of the Federal Rules of Civil Procedure. Class certification of the Arizona state claims has not yet been granted. Employees may be entitled to opt-out of any Rule 23 class if such certification is ultimately granted.