A Maricopa (AZ) County Superior Court judge has certified a class-action lawsuit alleging that Swift Transportation underpaid drivers for several years. And an attorney representing the plaintiffs in the case told Fleet Owner the practice may still be going on.
The suit, originally filed on Jan. 30, 2004, claims that Swift uses the Rand McNally Household Goods Mileage Guide to determine miles driven for pay calculations. That guide, according to Amy Wilkins, an attorney with Hagens Berman Sobol Shapiro LLP, which is representing the class, does not accurately reflect the miles actually driven and as such, Swift may have and continues to underpay drivers between 6 and 10%.
“We do believe Swift is still continuing to use this practice,” Wilkins said. “Drivers are running up far more miles on their odometer than [they are being paid for].”
According to Wilkins, even though Swift is using software to calculate the per-mile pay, it is “our understanding it does not use GPS point-to-point data.”
Judge J. Richard Gama ruled that the class of drivers represented includes “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.”
A subclass, defined as “all persons who contracted with Swift Transportation with a Contractor Agreement East Coast as of Dec. 14, 2001” was also declared.
Wilkins said the class size could be 20,000 to 30,000 drivers. She could not estimate what the damage award would be should the court find Swift guilty of the practice.
“We want Swift to pay its drivers fairly going forward,” she said, adding that the suit is also being viewed as a breach of contract issue. According to Wilkins, driver contracts specify that drivers will be paid per-mile, but does not specify how the company would calculate the mileage.
Kelly Flood, an attorney with Polsinelli Shughart representing Swift, told Fleet Owner the company does not comment on pending litigation.
The case has a n involved history since its original filing in 2004. A Maricopa judge initially denied the plaintiffs’ attempts to make it a class-action suit, but that was overturned on appeal by the Arizona Court of Appeals. Swift appealed the Court of Appeals ruling to the Arizona Supreme Court, which overturned the decision to make it a class-action suit based on procedural grounds, saying the appellate court lacked jurisdiction to review the lower court’s ruling.
Back in Maricopa County Superior Court, the plaintiffs, led by lead plaintiff Leonel Garza, filed a new motion recently to give the suit class-action status and the court agreed.
“It is a long process and when you have a defendant fighting tooth and nail and doing everything it can, it’s going to be a long process,” Wilkins said. “We hope it will go more rapidly from this point forward and get to the merits [of the case].”