Swift Transportation Customer Service Representatives II

Case Update: Settlement Granted! – Posted May 4, 2016

On April 17, 2017, the Court granted final approval of the FLSA settlement negotiated between the parties. We expect payments will be sent within the next two months. This timeframe includes (1) 33 days to allow for any appeals, and (2) assuming that there are no appeals, 14 business days after the appellate period to distribute the payments.

Answers to Common Questions:

Do I have to pay to join the case?

No. The attorneys representing plaintiffs are Getman & Sweeney, PLLC and we are handling this case on a contingent basis and will only be paid when we win through a settlement or final judgment.

What claims are covered in this case?

The complaint covers claims for unpaid overtime wages under the federal Fair Labor Standards Act (“FLSA”) and California law. The specific violations claimed are that, by paying a salary alone, Swift failed to pay wages at the rate of time and one half to its customer service representatives. The mere fact that an employer pays a salary does not avoid the requirement to pay overtime at the rate of time and one half.

The Named Plaintiff also brings individual claims under California state law.

What if I signed an “Acknowledgement and Release for Back Pay Wages” form and accepted money from Swift?

When Swift reclassified CSRs as non-exempt under the FLSA, Swift paid some CSRs money for their overtime claims. In return CSRs signed an “Acknowledgment and Release for Back Pay Wages” form. Even if you signed the form, it does not mean that you waived your right to recover all of your unpaid overtime wages or liquidated damages. Under the FLSA, you can only release your claim if it is approved by the Court or supervised by the U.S. Department of Labor. Thus, you may still be owed additional money by Swift that you are entitled to recover.

What work locations are covered by this lawsuit?

The FLSA overtime claims in this lawsuit covers customer service representatives who worked anywhere in the country. The California overtime claims in this lawsuit covers customer service representatives who worked in California.

What damages are sought?

Damages sought under the FLSA include back overtime wages, an equal amount of liquidated damages, and interest for each violation. The FLSA provides for liquidated damages in an amount equal to the back pay owed and allows claims going back three years from when someone affirmatively joins the case by filing a Consent to Sue form. Damages for the California class action state law claims include back overtime pay and prejudgment interest for each violation and allows claims going back four years from the Complaint. Under the FLSA and California overtime laws, a losing defendant is required to pay for the workers’ attorneys’ fees and costs. You must send us a signed Consent to Sue Form to bring your federal wage and hour claims in this action.

How far back can claims be made?

Under the FLSA, you are entitled to make claims for the period extending back three years from the date your Consent to Sue Form is filed in Court. Swift may argue that its violations were not willful and that the claims should only be limited to a two-year period preceding the filing of your Consent to Sue Form. This two or three year period is called the “statute of limitation.” The California state wage claims have a different statute of limitations that goes back four years from the date the complaint was filed in Court.

If I received out of court money from Swift can I still pursue my claims?

Even if you received money from Swift for unpaid overtime wages and did not resolve your case in arbitration or in the prior customer service representative litigation, you may still have overtime claims that you can pursue. An employee does not waive his or her claim under the Fair Labor Standards Act unless the settlement is approved by the court or supervised by the U.S. Department of Labor.

How do I join the case?

To bring claims under the FLSA for back wages and an equal amount of liquidated damages in this action, you must affirmatively join the case by filling out a Consent to Sue Form and returning it to Getman Sweeney to be filed with the Court. Even customer service representatives who worked in California and who do not fill out a consent to sue form MAY be part of the state overtime wage claims which are brought as a class action, but only IF the Court ultimately decides that the case may go forward as a class action. Customer service representatives who want the best chance of recovering back wages should fill out the Consent to Sue form and return it to Getman Sweeney to be filed with the Court.

Can I wait to file my Consent to Sue form?

You are not part of the FLSA case until your Consent to Sue Form is returned to the plaintiffs’ attorneys and filed. If you delay in filing the consent to sue, part or all of your claim may be barred by the statute of limitations.

Can Swift fire me or take action against me for joining the case?

The law prohibits retaliation for joining an overtime lawsuit. If any employee suffers retaliation, Swift would be liable for at least double the injury caused to the employee, and possibly much more. Notify us immediately if you think any retaliation has occurred or is occurring. Retaliation is rare in most overtime cases because an employer can suffer such serious penalties.

Can Swift or its attorneys contact me about this case?

Employers are generally permitted to contact unrepresented employees about a case until they have filed a consent to sue. Once you have filed a consent to sue, neither Swift nor its lawyers should contact you about the case. If they do, call us immediately.

Employers and their attorneys make it a regular practice to speak with current employees who have not yet filed a consent to sue. Even though they are not permitted to do so, employers and their counsel have in many cases tried to discourage employees from joining wage-and-hour cases. And they have tried to get employees to make a statement that can later harm their ability to join a lawsuit or otherwise interfere with their claims.

Here are the rules for employer attorney contact with employees about a case: First, employers’ attorneys should advise employees that they should secure their own counsel before speaking with the attorney. Second, attorneys for the employer may not give employees legal advice. Third, employers’ attorneys are not permitted to give false or misleading information about a case. Fourth, they are required to inform an employee that they represent the company and that the employee is not required to give a statement. You should know that statements that employees give to employers or their lawyers are generally sought to defend the company against the suit seeking back wages the company may owe its employees, including wages owed to the employee giving the statement. Getman Sweeney strongly believes that employees who may have back wage claims should not give statements to an employer or its attorneys without receiving legal advice first. If you are asked to provide information or give a statement, you can contact Getman Sweeney immediately. The call is free and confidential.