TRANSPORTATION LAWSUIT RE: DRIVERS PAY / SHORT MILES
Posted 11-25-2011 (update)
Certifies Lawsuit Against Swift Transportation as Class Action
– A Maricopa County Superior Court judge ruled Thursday that a lawsuit
accusing Swift Transportation Corp. of routinely shorting its drivers in
pay will move forward as a class action after a long and circuitous route
through the Arizona court system.
The lawsuit was first filed against Swift Transportation in early 2004,
but the motion to certify it as a class action was initially denied by a
Maricopa County Superior Court judge. The judge’s decision was appealed
by plaintiffs’ attorneys at Hagens Berman Sobol Shapiro LLP, and the
Arizona Court of Appeals reversed the lower court’s decision.
appellate court’s decision to certify the suit against Swift
Transportation as a class action, however, was then overturned by the
Arizona Supreme Court on procedural grounds. The Arizona Supreme Court
held that the appellate court lacked the jurisdiction to review the
decision by the trial court not to certify the suit as a class action.
case was sent back to the Maricopa County Superior Court where attorneys
for lead plaintiff Leonel Garza and the class filed a renewed motion to
have it certified as a class action. The court granted that motion
been a long and difficult road to get to this moment, but we’re happy
that the court ruled in our favor,” said Hagens Berman attorney Rob
Carey. “We’ve heard from numerous Swift drivers that the company’s
mileage calculation method cheats them out of honest and hard-earned
compensation. These drivers deserve their day in court, and now they’ll
case claims that rather than paying drivers on actual miles driven, the
company calculates mileage using a software program. The suit claims that
in doing so, the program, on average, underpays drivers by 7 percent to 10
percent. According to court documents, Swift Transportation’s manager of
contract finance from 1998 until 2002 admitted the software consistently
underreported the mileage that drivers actually log by an average of 6
lawsuit alleges breach of contract for not paying the correct amount and
breach of the implied covenant of good faith and fair dealing based on
Swift Transportation’s adoption of a system that underpays drivers.
County Superior Court Judge J. Richard Gama ruled Thursday that the class
for the case against Swift Transportation encompasses “all persons
in the United States, including those who were employed by Swift as
employee drivers on or after Jan. 30, 1998 or contracted with Swift as
owner-operator drivers on or after Jan. 30, 1998, who were compensated by
Swift by reference to miles driven.”
court also certified a subclass, defined as “all persons who contracted
with Swift Transportation with a Contractor Agreement East Coast” as of
Dec. 14, 2001. In addition, the court certified Garza as the lead
plaintiff to represent the class.
About Hagens Berman
Transportation drivers can
contact the firm by emailing Swift@hbsslaw.com
or by calling (206)-623-7292. More information is available at http://www.hbsslaw.com/swift_transportation_lawsuit
Drivers say they were underpaid for mileage while working for Swift
This lawsuit covers drivers working for Swift Transportation dating
back to 1998
Below is the substance of the “Short Miles”
lawsuit that was filed in 2004. Through
many appeals it has taken eight plus
years to get the case classified as a “Class Action” lawsuit.
The Arizona Supreme Court on September 6, 2011 settled a key part
of the lawsuit by declaring that the case can have “Class Action”
status. The law firm that is
handling the case for the plaintiffs (truck drivers) Hagens Berman Sobol
Shapiro LLP issued the following statement:
Arizona Supreme Court Rules Swift Corporation Must Face Employee Claims in
Phoenix – Sept. 6, 2011: After eight years of legal proceedings,
an Arizona Supreme Court ruling has concluded that truckers working for
Swift (NYSE: SWFT) who claim the company routinely shorts drivers for
mileage may take their case to trial.
truckers, represented by Hagens Berman, claim that Swift uses an
artificial calculation that results in drivers being paid for
significantly fewer miles than they actually drive.
Arizona Supreme Court has declined to review a trial court’s decision to
certify a broad class action based on a 2008 appellate court decision that
was vacated, which means the case will now proceed to trial.
are pleased that the court agreed with us that Swift drivers deserve to
take this case to trial,” said Rob Carey, a partner in the Phoenix
office of Hagens Berman. “We believe that the company illegally took
millions in unpaid wages from its drivers.”
to the complaint, originally filed Jan. 30, 2004, in the Superior Court of
the State of Arizona for the County of Maricopa, Swift short-changed
drivers using a database that, on average, shorts drivers a significant
percentage of their mileage — and hence their pay.
believe that the software program chosen by Swift is not compatible with
the company’s obligations under the drivers’ employment agreements,”
said Carey. “We look forward to pointing out this inconsistency in court
and recovering drivers’ lost wages.”
Berman is interested in speaking with Swift drivers who worked for the
company from 1998 to the present. Drivers or former drivers can contact
the firm by emailing Swift@hbsslaw.com
or by calling (206)-623-7292. More information is available at http://www.hbsslaw.com/swift_transportation_lawsuit
lawsuit alleges that Swift is guilty of breach of contract and breach of
the implied covenant of good faith and fair dealing based on its alleged
failure to pay for all miles driven. END
Truckers' lawsuit against Swift Transportation now expanded.
Drivers say they were
underpaid for mileage
Beard - November, 2010
The Arizona Republic
lawsuit accusing Swift Transportation Co. Inc. of underpaying its drivers
for mileage for more than a decade has been certified as a class action,
paving the way for thousands of current and former drivers to possibly
recover back pay.
Maricopa County Superior Court Judge Richard Gama last week certified the
2004 lawsuit as a class action on behalf of both Swift employee drivers
and independents who had contracts with Swift going back to Jan. 30, 1998.
Carey, a Phoenix-attorney who filed the suit on behalf of three
out-of-state drivers, said the class action could include 20,000 to 30,000
drivers or more. Many drivers may have worked for Swift for a short time.
The lead plaintiff is a Texas driver, Leonel Garza.
Flood, an attorney representing Swift, said the company has a policy of
not commenting on lawsuits.
a July (2010) proposal filed
with the U.S. Securities and Exchange Commission to become a public
company, Swift mentioned the lawsuit and said its "management does
not believe the outcome of this litigation is likely to have a material
adverse effect on us. However, the final disposition of this case and the
impact of such final disposition cannot be determined at this time."
a Phoenix-based trucking
company owned by former Phoenix Coyotes owner Jerry Moyes, was a public
company from 1990 to 2007 and is attempting to return to public status to
raise money to pay part of its debts.
to the lawsuit, Swift used a Rand McNally Household Goods Mileage Guide
that is common in the industry to compute miles driven. But while the
software enables a company or driver to accurately track miles driven,
thanks to global positioning systems, the company chose to credit drivers
for miles driven to cities, but not the miles incurred within them.
a sprawling city, such as Los Angeles, for example, drivers wouldn't get
reimbursed for the costs of driving from one side to the other, the suit
average, drivers were shorted 7 to 10 percent of their mileage pay, Carey
could not guess at the possible total amount of damages, should he win.
a very pervasive problem. It covers all the drivers, 30,000 some,"
Carey said. "So it's a substantial exposure."
also said he may investigate to see if drivers for other trucking
companies faced similar problems.
Rasmussen, president and CEO of the Arizona Trucking Association, said
it's easier today for trucks
to track their exact mileage because of satellites and GPS systems. And
trucking companies tend to be strict about tracking mileage to comply with
federal rules that restrict how much drivers can be on the road, she said.
don't want your truck
drivers driving past their allotted hours from a legal perspective and
from a fatigue perspective. You got the deep pockets. You got the
liability if something happens," she said of trucking companies.
A motion to have the lawsuit certified as a class action originally was
filed in July 2006.
A Superior Court judge denied it, but was overturned by the Arizona Court
of Appeals. Then the case ended up at the Arizona Supreme Court, which
ruled a year ago that the plaintiffs were not automatically entitled to an
appeal. So the case ended up back in Superior Court, to essentially start
the class certification over again. END
let any of your friends know that I will follow this case and that they
can get the latest information at www.drivers1st.com.
Posted September 26, 2011
Trucker Pay Has Other Fleets Concerned
By Eric Miller, Staff
This story appears in the Sept. 26 print edition of Transport
Some truckload carriers say they are concerned about potential
industrywide implications of a class-action lawsuit challenging the way
Swift Transportation, one of the nation’s largest truckload carriers,
calculates the mileage basis for paying truck drivers.
“We’re concerned that the plaintiffs could get a favorable
decision, especially be-cause it’s a class action,” Tommy Hodges,
chairman of Titan Transfer Inc., Shelbyville, Tenn., told Transport
Topics. “Their lawyer has commented that if they win, they’re going to
go after every trucking company that they can.”
Although the courts have not yet addressed the merits of the claims
the truck drivers raised in their 2004 lawsuit, the Arizona Supreme Court
ruled this month that the lawsuit can progress as a class action.
The class of drivers includes all independent owner-operators and
company truck drivers Swift em-ployed or had under contract since 1998,
estimated at about 20,000, said the drivers’ attorney, Rob Carey, who is
with the Phoenix law office of Hagens Berman.
The drivers have alleged that Swift used “shortest miles”
software rather than “actual miles” software as a basis for payment
— shortchanging drivers’ pay by an estimated 10%.
“Swift’s practice of paying for materially fewer miles than the
miles actually traveled by the driver on the run is uniform and affects
all drivers throughout the country,” the plaintiffs asserted in the
Swift has declined to comment on the litigation but has denied the
drivers’ allegations in court documents.
Truckload Carriers Association President Christopher Burruss also
declined comment on the Swift lawsuit.
However, Lana Batts, managing partner of Transport Capital Partners
and a member of the TCA board of directors, said the mileage-basis issue
is crucial for carriers’ bottom lines.
Although she declined to comment on the Swift lawsuit specifically,
Batts said the way a carrier pays its drivers is very often subject to its
negotiating position with its customers, rather than a conscious attempt
to short drivers’ pay.
Batts said that when trucks are easy to find, a shipper might have
the negotiating power to require that a carrier bill a shipper based on
short miles, which guides a truck driver on the most direct route,
including through the heart of large urban areas.
By contrast, when capacity is tight, a carrier might be able to
turn the tables on the shippers, charging its customers based on practical
miles, which typically routes the driver to an interstate loop to avoid
city traffic and congestion, Batts said.
As a result, she said, many carriers prefer to bill based on
practical miles that can shorten the number of hours it takes a driver to
get to a destination and delivery.
Carey said the drivers are not attempting to tell carriers which
system to use, but are seeking to make clear the method they use to
calculate drivers’ pay.
“I don’t think this is a case of one contract, and I don’t
know if it’s an attack on the industry either,” Carey told TT. “What
Swift can’t do is say, ‘We’re going to pay you by miles,’ and then
pay something that’s 10% less than miles on average. If you know that
you’re going to pay 10% less, you need to disclose that.”
“If it’s disclosed and accurate, I don’t think you have a
problem,” Carey added.
Hodges said that even when some carriers are pressured to bill a
shipper using shortest miles, they may decide in fairness to pay a driver
based on practical miles.
“There are some folks out there that still pay shortest miles,”
Hodges said. “But the pressure to secure drivers and to keep drivers
pretty much drove the market to pay practical miles, which is the closest
thing to actual miles.”
Paying drivers based on actual miles can be tricky, Hodges said.
“Some could go out of route and other things,” said Hodges, a
former chairman of American Trucking Associations. “So you have to have
a benchmark out there, and that benchmark has been practical miles.”
Robert Molinaro, chairman and CEO of Warren Transport Inc.,
Waterloo, Iowa, agreed that the lawsuit’s outcome could have a
significant effect on the industry.
“I think it’s an important issue for carriers,” Molinaro
said. “I’m sure that each carrier wants to preserve their particular
manner of calculating miles.”
Todd Spencer, executive vice president of the Owner-Operator
Independent Drivers Association said the lawsuit could have a “pretty
big impact” on the industry.
“It shouldn’t, simply because paying drivers on ‘practical’
shouldn’t be something that needs to be legislated,” Spencer told TT.
“Drivers shouldn’t be directly negatively impacted by arrangements
between carriers and shippers.”
End of Posting