Court allows class-action against Aspen towing company
Attorneys for a man suing an Aspen towing company for overtime compensation can start sending notices to other prospective plaintiffs to form a class-action suit, according to a court ruling delivered last week.
U.S. Magistrate Judge Kristen L. Mix, in an 11-page order issued Nov. 13, cleared plaintiff and former Shaun’s Towing and Recovery driver Joseph Durrant to notify current and former employees of the company about the litigation and provide instructions on how to join the class action.
Mix’s order supported Durrant’s motion describing eligible class members as “all tow truck drivers who worked for Shaun’s Towing And Recovery, LLC and/or Shaun Healy, at any time from three years before the date of the mailing of this notice through the final disposition of this case, but did not receive overtime for hours worked over 40 in any workweek.”
The notice also must tell prospective plaintiffs they may have to appear in Denver for court proceedings, Mix’s order said.
Durrant’s complaint, which was filed in December in the U.S. District Court of Denver, claims he worked as a driver with Shaun’s Towing from August 2015 until February 2016, earning $13 an hour plus 30 percent commission. The suit claims he wasn’t paid for “the required rate of time-and-one-half for all hours worked over 40 each workweek.”
The suit makes claims under the Fair Labor Standards Act, the Colorado Minimum Wage Claim Act and the Colorado Wage Claim Act.
Durrant has alleged he and other employees were paid for two weeks of work regardless of the number of hours they logged. Some workers put in as many as 96 hours a week, Durrant alleges.
The defense has countered that Durrant cannot recruit “similarly situated employees” to join his suit because drivers could be required to cross state lines as part of their job, while Durrant did not.
Durrant and other employees “are exempt from receiving overtime compensation under the FLSA as they are subject to the Motor Carrier Act Exemption,” the defense argued. The defense asked that the class be restricted to drivers who only worked within state lines, but Mix ordered the class could include all drivers.
The Motor Carrier Act exempts employees who work overtime, provided they are involved in interstate commerce through driving activities, from receiving time-and-a-half pay.
Mix’s ruling said the defendants failed to provide information to the court supporting that distinction.
“Defendants have offered no basis for differentiating between employees who worked solely in Colorado and those who worked in Colorado but also transported motor vehicles across State lines,” the magistrate judge’s order said.
However, Mix said that argument can be brought up again after the discovery portion of the litigation.
At this stage of the case, Mix also noted that the plaintiffs only need to demonstrate a “modest showing” that Durrant and other class members were victims of labor law violations by Shaun’s Towing.
Shaun’s Towing started in 2005 and serves the entire Roaring Fork Valley.
Corpus Christi, Texas, attorney Clif Alexander, who represents Durrant, and Shaun’s Towing lawyer Michael P. McGovern of Knoxville, Tennessee, could not be reached for comment last week.
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