Other cases involving delivery drivers with similar facts and circumstances have been conditionally certified. See also Rodriguez v. Cutchall, No. 4:20CV3106, 2021 WL 5911322 (D. Neb. Nov. 16, 2021) (finding the plaintiff had established a colorable basis that putative class members were victims of a single decision, policy, or plan where the plaintiff presented evidence of the employer's policies regarding delivery drivers' job duties, pay, and vehicle requirements);Bass v. PJCOMNAcq. Corp., Civil No. 09-cv-01614-REB-MEH, 2010 WL 3720217 (D. Colo. Sept.15, 2010) (finding the plaintiffs' allegations that delivery drivers were subject to policies that resulted in low wages constituted substantial allegations that the putative class members were victims of a single decision, policy, or plan for conditional certification); Tegtmeier v. PJ Iowa, L.C., 208 F.Supp.3d 1012 (S.D. Iowa 2016) (granting conditional certification of a delivery driver's FLSA claim).
; Clark v. Sw. Energy Co., No. 4:20-CV-00475-KGB, 2022 WL 993755, at *3 (E.D. Ark. Mar. 31, 2022) (“The Court declines to apply Swales, as have other district courts in the Eighth Circuit.”); Murphy v. Lab. Source, LLC, No. 19-CV-1929 (ECW), 2022 WL 378142, at *11 (D. Minn. Feb. 8, 2022) (stating that Swales undermines the discretion afforded to district courts in implementing 29 U.S.C. § 216(b)); McCoy v. Elkhart Prod. Corp., No. 5:20-CV-05176, 2021 WL 510626, at *2 (W.D. Ark. Feb. 11, 2021) (declining to follow the standard adopted in Swales); Rodriguez v. Cutchall, No. 4:20-CV-3106, 2021 WL 5911322, at *2 (D. Neb. Nov. 16, 2021), report and recommendation adopted, No. 4:20-CV-3106, 2021 WL 5907935 (D. Neb. Dec. 14, 2021) (declining to follow Swales where defendant failed to present any persuasive reason why the court should deviate from the two-step approach); Knight v. Dakota 2000 Inc., No. 3:21-CV-03025-RAL, 2022 WL 15773896, at *3 (D.S.D. Oct. 28, 2022) (“[T]he [two-step] approach makes sense, and most federal courts use it.”); Freeman v. Tyson Foods, Inc., No. 5:21-CV-05175, 2022 WL 3566615, at *3 (W.D. Ark. Aug. 18, 2022) (“This Court will continue using the two-step standard it has historically employed in FLSA collective actions[.]”).
The Court declines to apply Swales, as have other district courts in the Eighth Circuit. See, e.g., Murphy v. Labor Source, L.L.C., Case No. 19-cv-1929, 2022 WL 378142, at *11 n.4 (D. Minn. Feb. 8, 2022); Rodriguez v. Cutchall, Case No. 4:20-cv-3106, 2021 WL 5911322, at *2 (D. Neb. Nov. 16, 2021); McCoy v. Elkhart Prods. Corp., Case No. 5:20-cv-05176, 2021 WL 510626, at *2 (W.D. Ark. Feb. 11, 2021).
The Court declines to apply Swales, as have other district courts in the Eighth Circuit. See, e.g., Murphy v. Labor Source, L.L.C., Case No. 19-cv-1929, 2022 WL 378142, at *11 n.4 (D. Minn. Feb. 8, 2022); Rodriguez v. Cutchall, Case No. 4:20-CV-3106, 2021 WL 5911322, at *2 (D. Neb. Nov. 16, 2021); McCoy v. Elkhart Prods. Corp., Case No. 5:20-CV-05176, 2021 WL 510626, at *2 (W.D. Ark. Feb. 11, 2021).
The Court declines to apply Swales, as have other courts in the Eighth Circuit. E.g., Murphy, 2022 WL 378142, at *11 n.4; Rodriguez v. Cutchall, No. 4:20-CV-3106, 2021 WL 5911322, at *2 (D. Neb. Nov. 16, 2021), R. & R. adopted, 2021 WL 5907935 (D. Neb. Dec. 14, 2021); McCoy v. Elkhart Prods. Corp., No. 5:20-CV-05176, 2021 WL 510626, at *2 (W.D. Ark. Feb. 11, 2021). In doing so, the Court rejects Defendant's argument that the two-part inquiry subverts § 216(b)'s directive that only similarly situated employees may proceed as a collective.