Swift Lawsuit Reinstated; Marten Case Dismissed

This story appears in the July 25 & August 1 print edition of Transport Topics.

A class-action lawsuit filed by more than 80,000 drivers against Swift Transportation has been reinstated after a ruling from the Arizona Court of Appeals, but another lawsuit against Marten Transport was dismissed by the U.S. Court of Appeals.

The lead plaintiff in the Swift lawsuit, Leonel Garza, alleges the Phoenix truckload carrier broke the law when it paid owner- operators using the Rand McNally household goods movers guide, or HHG, because it shortchanged drivers at least 10% of what they were actually owed.

Swift Vice President Dave Berry told Transport Topics the company will file a petition to the Arizona Supreme Court to review the ruling but declined further comment on the case.

The issue in the lawsuit has to do with short miles versus practical miles and how carriers pay drivers. Short miles refer to calculating a trip from origin to destination using the shortest possible route by miles. Practical miles refers to the quickest route from origin to destination, often maximizing the use of interstates regardless of whether the overall mileage is greater.

Garza, representing the class of 80,000 drivers, alleges that Swift used short miles to save costs on salaries and wages. He also claims that Swift was not upfront about the methodology with the owner-operators.

“I have no problem if they want to fully explain the pay system, and then the driver can make his or her own choice on how to make the trip. Then there’s no complaint, and you’ve accepted the terms as a driver, as long as the company is upfront with it,” said the drivers’ attorney, Rob Carey, who is with the Phoenix law office of Hagens Berman.

Swift counters that drivers were informed and understood that the trips might require them to drive up to 10% more miles than the HHG calculation to determine pay. The Superior Court of Arizona in Maricopa County decertified the class in July 2015. Judge J. Richard Gama found that the claim was unmanageable as a class action and called the process “a tortured one” that was unfair to Swift. But the Arizona Court of Appeals reversed the ruling July 12 and recertified the class.

“Swift cites substantial evidence that it told its drivers, or that the drivers otherwise knew, that they would be paid for fewer miles than they actually drove. It cites no evidence, however, that it told any of its drivers that, as petitioners allege, it could have used an option within HHG to derive more accurate mileage totals but chose not to do so,” the three-judge panel ruled.

Meanwhile, the U.S. Court of Appeals ruled July 13 against a former driver in his appeal against Marten Transport Ltd. Ronald Maiteki worked for the Mondovi, Wisconsin-based carrier in 2011 and lost his job, in part, due to speeding, according to the lawsuit.

Marten Transport told a consumer reporting agency afterward that Maiteki had an unsatisfactory safety record, but he alleges that the report was incorrect and cost him other potential truck driving jobs, violating the Fair Credit Reporting Act.

In a brief, Marten wrote that Maiteki received a warning in Illinois in July 2011 for driving 6 to 10 mph over the speed limit. In September and October 2014, software called SpeedGauge, installed in the truck, recorded him driving at least 4 mph over the limit on 13 occasions over seven days.

Maiteki counters that he never received a written warning from Marten Transport after the Illinois incident, nor a “serious warning” in October. He adds that he didn’t speed 13 times and never had an accident or incident listed on his driving record. Maiteki also alleges that Marten didn’t conduct a reasonable investigation when he objected.

The U.S. District Court Judge William Martinez issued a summary judgment in favor of Marten Transport in October 2015. The 10th Circuit Court of Appeals upheld the ruling.

“This case was brought to the courts to secure truck drivers’ interests and the integrity of employment background records maintained by trucking companies. Despite the setback, our objective is to continue the quest to seek for protection of the interests of hardworking truck drivers,” said Maiteki’s attorney, Andrew Nyombi.

Attorneys for Marten Transport said they are pleased with the ruling and believe the company acted properly in all respects investigating this matter.