United States District Court, D. Massachusetts
MARCOS DaSILVA and MATTEUS FERREIRA, on behalf of themselves and all others similarly situated, Plaintiffs,
BORDER TRANSFER OF MA, INC., and PATRICK McCLUSKEY, Defendants.
MEMORANDUM AND ORDER
B. SARIS Chief United States District Judge.
DaSilva and Ferreira used to work as delivery drivers for
Defendant Border Transfer. They claim that Border Transfer
improperly treated them as independent contractors when they
were, in fact, employees, and that, as a result, Border
Transfer unlawfully deducted certain business expenses from
their pay under the Massachusetts Wage Act. Plaintiffs now
seek certification of a class of similarly situated current
and former drivers under Fed.R.Civ.P. 23. For the reasons
discussed below, Plaintiffs have met the Rule 23
after hearing, the Court ALLOWS the
motion for class certification (Docket No. 73).
Transfer is a broker registered with the Federal Motor
Carrier Safety Administration (“FMCSA”). Docket
No. 9-2 at 1; see also 49 U.S.C. § 13102(2). As
a broker, Border Transfer arranges home delivery services for
large retail stores such as Sears.
Transfer itself does not deliver goods. Instead, Border
Transfer contracts with FMCSA-authorized motor carriers to
perform the home deliveries. Border Transfer's contracts
with each motor carrier, which Border Transfer calls Contract
Carrier Agreements (“CCAs”), are all
substantially the same. Docket No. 74-3 at 11 (“Matos
Dep.” at 33:17-18). Each of the CCAs states that the
motor carrier is considered to be an independent contractor
of Border Transfer. E.g., Docket No. 74-4 at 5
(“DaSilva CCA” ¶ 8).
Transfer only enters into CCAs with business entities. Docket
Nos. 74-7 at 7, 74-8 at 2 (Border Transfer's
“Carrier File Requirements, ” which require motor
carriers signing CCAs to provide Border Transfer with a
“copy of LLC or incorporation”). Drivers who wish
to deliver for Border Transfer but who do not already have a
corporate entity must create one; in at least one instance,
Border Transfer helped a driver form a corporate entity and
complete the steps to comply with federal regulations
covering motor carriers. Docket No. 74-9 at 7-8.
cases, Border Transfer contracts with motor carrier companies
that consist solely of a single driver who personally
performs the delivery services. That was the case with named
plaintiff Marcos DaSilva, who entered into a CCA with Border
Transfer through Alpha Logistics Trucking, LLC (“Alpha
Logistics”). Docket No. 74-4 at 9. DaSilva applied for
a job as a delivery driver with Border Transfer. Docket No.
74-11 ¶ 4. A Border Transfer manager told him that he
needed to form a company to sign a contract with Border
Transfer, and the manager helped him fill out the necessary
forms to create Alpha Logistics. Docket No. 74-11 ¶ 4.
Alpha Logistics only ever operated one truck, and DaSilva was
the sole driver for that truck. Docket No. 74-9 at 18.
other cases, Border Transfer contracts with motor carrier
companies that employ multiple drivers. That was the case
with Matteus Ferreira, the other named plaintiff. Matteus
Ferreira was the joint owner of Father & Son Transporting
LLC with his father, Marcos Ferreira. Docket No. 74-10 at 9.
Father & Son Transporting LLC was formed before the
father, Marcos Ferreira, signed a CCA with Border Transfer.
Docket No. 9-2 at 12; Docket No. 74-10 at 7. Father & Son
Transporting LLC began by operating one truck for Border
Transfer but eventually operated three trucks for Border
Transfer. Docket No. 74-10 at 12-13. Those three trucks were
operated by Matteus Ferreira, Marcos Ferreira, and several
other persons hired by Father & Son Transporting LLC.
Docket No. 74-10 at 13.
motor carriers under contract with Border Transfer perform
their deliveries from Sears' Westwood, Massachusetts
facility. The CCAs require that all drivers who have an
assigned route on a particular day attend a morning
“stand-up” meeting at the facility. Docket No.
9-2 at 13; Docket No. 74-3 at 13. At the meeting, drivers
might receive instructions on new installation processes, be
informed of recurrent customer complaints, or receive
training on how to communicate with customers. Docket No.
74-3 at 13, 29. The CCAs require drivers to wear a uniform
each day, and drivers are not allowed to leave the facility
if they do not comply with that mandate. Docket No. 9-2 at
17-18; Docket No. 74-3 at 14.
procedures are spelled out in the CCAs as well. Docket No.
9-2 at 14. Among the requirements is that the drivers
“must run all delivery routes exactly as specified in
the manifest.” Docket No. 9-2 at 14. Those manifests
are provided to drivers by Border Transfer and contain the
order of deliveries and time windows for each delivery.
Docket No. 74-3 at 22; Docket No. 74-14. Drivers must log
deliveries as they happen by recording them on a smartphone
app. Docket No. 74-3 at 17.
plaintiffs filed the proposed class action complaint in this
case on June 23, 2016. Docket No. 1. The original complaint
named Border Transfer as the sole defendant and contained two
counts: violation of the Massachusetts Wage Act and unjust
Transfer moved to dismiss, arguing that the Wage Act claim
was preempted by the Federal Administration Authorization Act
of 1994, 49 U.S.C. § 14501(c). Docket No. 8. On January
5, 2017, the Court denied the motion as to the Wage Act claim
but dismissed the unjust enrichment claim. Docket No. 49.
operative complaint is the amended complaint, which was filed
on May 1, 2017. Docket No. 65. The amended complaint names
the President of Border Transfer, Patrick McCluskey, as an
additional defendant and contains a single count for
violation of the Wage Act. In substance, the plaintiffs allege
that their misclassification resulted in unlawful deductions
from their pay, including damage claims and uniforms, as well
as unlawful requirements that they pay for workers'
compensation coverage and cargo insurance.
pending before the Court is the plaintiffs' motion for
class certification, filed on June 19, 2017. Docket No. 73.
The proposed class is defined as follows:
All individuals who 1) entered into a Contract Carrier
Agreement (or similar agreement) directly or through a
business entity; 2) personally provided delivery services for
Border Transfer on a full-time basis in Massachusetts; and 3)
who were classified as independent contractors, at any time
since June 23, 2013.
No. 73 at 1. This class definition excludes so-called
secondary drivers, who provided delivery services for Border
Transfer under contracts between Border Transfer and other
persons, and so-called absentee contractors, who held
contracts with Border Transfer but did not drive a truck
No. 74 at 4 n.6, 23.
Massachusetts Wage Law
Massachusetts Wage Act requires prompt and full payment of
wages due. It provides that “in no event shall wages
remain unpaid by an employer for more than six days from the
termination of the pay period in which such wages were earned
by the employee.” Mass. Gen. Laws ch. 149, § 148.
The Massachusetts Supreme Judicial Court has interpreted the
statute as banning improper wage deductions, even where the
employee has given his or her assent. Camara v. Attorney
Gen., 941 N.E.2d 1118, 1121-22 (Mass. 2011).
The scope of covered employees for the Massachusetts Wage Act
is governed by the Massachusetts Independent Contractor
[A]n individual performing any service, except as authorized
under this chapter, shall be considered to be an employee
under those chapters unless:
(1) the individual is free from control and direction in
connection with the performance of the service, both under
his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of the
business of the employer; and,
(3) the individual is customarily engaged in an independently
established trade, occupation, profession or business of the
same nature as that involved in the service performed.
Mass. Gen. Laws ch. 149, § 148B(a). Under the statute, a
worker is an employee and not an independent contractor if
any one of the three prongs is not met. In other words,
“to rebut the presumption of employment, an employer
must satisfy all three of these prongs.” Chambers
v. RDI Logistics, Inc., 65 N.E.3d 1, 8 (Mass. 2016). The
three prongs are referred to as Prongs A, B, and C (or,
occasionally, Prongs 1, 2, and 3) in the case law.
First Circuit held last year that Prong B is preempted by
federal law as applied to motor carriers such as Border
Transfer. Schwann v. FedEx Ground Package Sys.,
Inc., 813 F.3d 429, 442 (1st Cir. 2016). As such, for
the defendants to defeat the presumption of employment, they
must prevail on both Prongs A and C. The plaintiffs can
prevail by showing that either Prong A or C is not satisfied.
Rule of Civil Procedure 23(a) imposes four “threshold