In order to determine whether an employer has misclassified an individual as an independent contractor, the court is to consider six factors commonly referred to as the “economic realities” test. Blair v. TransAm Trucking, Inc., 309 F.Supp.3d 977, 1002 (D. Kan. 2018) (“Blair II”) (citing Barlow v. C.R. England, Inc., 703 F.3d 497, 506 (10th Cir. 2012)). Defendants spend much time arguing that the facts show that there will be individual inquiries into at least two of these factors. (Doc. 149 at 914.)
Defendant is correct that the FLSA preempts any claim for minimum or overtime wages under the KWPA. Blair v. TransAm Trucking, Inc., 309 F. Supp. 3d 977, 982 (D. Kan. 2018) ("[T]o the extent that the KWPA could be interpreted to allow a claim for unpaid federal minimum wages, it is preempted by the FLSA."); Larson v. FGX Int'l, Inc., 2015 WL 1034334, at *3 (D. Kan. 2015) ("Thus, to the extent that the KWPA could be interpreted as a mechanism for asserting FLSA-based claims for minimum or overtime wages, it would be preempted by [the FLSA]."). Defendant characterizes both Plaintiff's FLSA and KWPA claims as for "minimum or straight time and overtime wages."
District of Kansas judges have found that the FLSA does, indeed, preempt claims under the KWPA for minimum wages and overtime. See, e.g., Blair v. Transam Trucking, Inc., 309 F. Supp. 3d 977, 997-98 (D. Kan. 2018) (holding that Plaintiffs' class KWPA claim was duplicative of Plaintiffs' FLSA claim and therefore preempted by the FLSA); Larson, 2015 WL 1034334, at *3 (holding that "any attempt to bring minimum wage or overtime claims against FLSA employers through the KWPA mechanism can only be an attempt to assert the remedies found in §§ 206 and 207 of the FLSA," making "the KWPA [an improper] mechanism for asserting such claims"). The Court does not need to examine preemption first, as in this situation preemption is not a jurisdictional question.
Thiessen, 267 F.3d at 1102 (citations omitted). Blair v. Transam Trucking, Inc., 309 F.Supp.3d 977, 1001 (D. Kan. 2018) Koehler v. Freightquote.com, Inc., 93 F.Supp.3d 1257, 1263 (D. Kan. 2015) (quoting Folger v. Medicalodges, Inc., 2014 U.S. Dist. LEXIS 86286, at *3 (D. Kan. June 25, 2014)).
This would cause the proceedings to "devolve into numerous mini-trials, causing the jury to evaluate testimony from countless witnesses and other evidence that is unique to particular Plaintiffs, and thus incompatible with collective actions." Blair v. TransAm Trucking, Inc., 309 F. Supp. 3d 977, 1010 (D. Kan. 2018) (quoting Green v. Harbor Freight Tools USA, Inc., 888 F. Supp. 2d 1088, 1104 (D. Kan. 2012)). At oral argument, plaintiffs' counsel contended that the plaintiffs have the burden of proving work within the territorial jurisdiction of the United States, and that burden is the same with respect to all of the plaintiffs.
See Doc. 284, p. 14 (“Defendants violated the FLSA by failing to pay overtime compensation to hourly laborers ....”). In support of their motion, Defendants rely exclusively on four FLSA collective action cases from this District that were decertified after discovery-Blair v. TransAm Trucking, Inc., 309 F.Supp.3d 977 (D. Kan. 2018) (Melgren, J.); Swartz v. DJ Engineering, Inc., No. 12-CV-01029-DDC-KGG, 2015 WL 4139376 (D. Kan. July 9, 2015) (Crabtree, J.); Green v. Harbor Freight Tools USA, Inc., 888 F.Supp.2d 1088 (D. Kan. 2012) (Robinson, J.); and Scott v. Raudin McCormick, Inc., No. 08-4045-EFM, 2010 WL 5093650 (D. Kan. Dec. 8, 2010) (Melgren, J.). None of these cases is persuasive to the Court here because the circumstances of those cases are different in meaningful ways.
Id. at 1102. Id. (alterations omitted) (quoting Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)); see also Blair v. TransAm Trucking, Inc., 309 F.Supp.3d 977, 1001 (D. Kan. 2018) (citing Thiessen, 267 F.3d at 1102). Blair, 309 F.Supp.3d at 1001 (citing Thiessen, 267 F.3d at 1103).
With that in mind, the Court is cognizant that it is not making a merits determination on the applicability of any FLSA exemption at this stage. See Blair v. TransAm Trucking, Inc., 309 F.Supp.3d 977, 1003 (D. Kan. 2018); Heartland Auto. Servs., 404 F.Supp.2d at 1148. Nor must Plaintiff establish that the opt-ins are identically situated.
Id. at 1102. Id. (alterations omitted) (quoting Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)); see also Blair v. TransAm Trucking, Inc., 309 F.Supp.3d 977, 1001 (D. Kan. 2018) (citing Thiessen, 267 F.3d at 1102). Blair, 309 F.Supp.3d at 1001 (citing Thiessen, 267 F.3d at 1103).
Id. at 1102. Id. (alterations omitted) (quoting Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)); see also Blair v. TransAm Trucking, Inc., 309 F.Supp.3d 977, 1001 (D. Kan. 2018) (citing Thiessen, 267 F.3d at 1102). Blair, 309 F.Supp.3d at 1001 (citing Thiessen, 267 F.3d at 1103).