On November 7, 2016, Flowers Foods distributors in New England and New York won conditional class certification in a case challenging their classification by Flowers Foods as independent contractors. In its decision, the United States District Court for the District of Vermont held that distributors in Vermont, New Hampshire, Massachusetts, Connecticut, Rhode Island and a portion of New York, share common issues of law and fact with respect to the legal determination of whether they are employees of Flowers Foods or, as the bakery claims, independent contractors. The decision means that any distributor of Flowers Foods and its subsidiaries, LePage Bakeries and CK Sales, who worked for the company in these states in the past three years will have an opportunity to join the lawsuit. This is the latest in a series of victories for distributors who, earlier this year, scored similar wins in North Carolina and Arizona. The lawsuit, Neff et al v. Flowers Foods Inc. et al., is one of over 15 related cases against Flowers Foods and continues to validate and build momentum for distributors in similar lawsuits across the country.
As in other states, the distributors in Neff have brought a collective action under the Fair Labor Standards Act (“FLSA”) and related state wage and hour statutes arguing Flowers Foods, Inc., LePage Bakeries and CK Sales, misclassified them as independent contractors, yet treated them as employees. Distributors deliver baked goods to the Flowers Foods’ customers, stock the products on store shelves, assemble promotional displays created and provided by the company and perform most of their duties at the company’s direction. Flowers Foods dictates the place and time of delivery, pricing, delivery agreements, shelf space and advertising and negotiates directly with its customers. Distributors argue that because the company controls most aspects of their job, they are employees, not independent contractors, and have been denied wages for all time worked, overtime, and other benefits entitled to them under the FLSA and related state laws.
As a result of certification, a notice will be issued to potential class members throughout the five New England states and portions of New York informing them of the lawsuit and the opportunity to opt in and join it. The potential class includes: “All persons who are or have performed work as ‘Distributors’ for Defendants under a ‘Distributor Agreement’ or a similar written contract with LePage Bakeries or CK Sales that they entered into during the period commencing three years prior to the commencement of this action through the close of the Court-determined opt-in period and who file a consent to join this action….”
The class notice will be issued in the coming weeks, and distributors will have 90 days from the date of the mailing to respond. Contact Baillon Thome Jozwiak & Wanta LLP to speak with an attorney about this lawsuit or about similar lawsuits against Flowers Foods and their subsidiaries in other states. Click here or call us at 612-252-3570.