May 9, 2019

Consumer News Independent Contractor Misclassification

Flowers Foods Distributors Win in PA, MD and NJ

May 9, 2019 – More victories for Flowers Foods distributors. Yesterday, a federal judge in Pennsylvania granted class certification for distributors of bakery products for Flowers Foods, Inc., and Flowers Baking Company of Oxford, Inc., in their ongoing wage and hour case against the company. This decision affects distributors in Pennsylvania, Maryland and New Jersey and is the third straight class certification win for distributor-drivers in lawsuits in states across the country who are challenging their misclassification as independent contractors. Other federal courts awarding class certification thus far include Maine and North Carolina. Wanta Thome PLC is Lead Class Counsel in these lawsuits, as well as other class actions in Arizona, New England and a second case pending in North Carolina.

Carr v. Flowers Foods, Inc. et al. is a class action lawsuit venued in the United States District Court for the Eastern District of Pennsylvania and brought on behalf of a class of individuals who operate(d) as fresh bakery product distributors for Defendants. The companies jointly employ “distributors” to deliver bakery and snack food to their customers, which includes grocery stores, mass retailers, and fast food chains. This action challenges both the classification of distributors as independent contractors and Defendants’ denial to Plaintiffs and the class members of the rights, obligations, privileges, and benefits owed to them as employees (including overtime and other benefits.) Plaintiffs allege violations of the Federal Fair Labor Standards Act (FLSA) and related state laws.

In its order, the court held that: 1) all three state subclasses (Pennsylvania, Maryland and New Jersey) are certified under Rule 23(b)(3); 2) Defendants’ motion to decertify the FLSA class was denied; and 3) Defendants’ motion for judgment on the pleadings with respect to the Pennsylvania state overtime claim was denied.

The court’s class certification order in Carr v. Flowers Foods can be found below. Highlights from the decision:

[A]s to a number of the most salient features of Plaintiffs’ work, there is near uniformity among the members of the collective. In particular, there is no variation on the primary source of their livelihood: the majority of distributors’ sales come from large chain customers, which are chiefly controlled by Flowers. Further, there appears to be little to no variation as to the Flowers-operated training program they were required to complete and the general provisions included in the Distribution Agreement that outline the terms of their relationship with Flowers. Simply, as to many key points, the members of the collective were near-identically situated. [Id. at 8-9.]

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[T]he variations identified by Defendants pale in comparison to the commonalities. As noted, on the most important aspects of their employment, Plaintiffs have demonstrated that they are similarly or near-identically situated: they make most of their money by servicing large chain accounts, which are closely controlled by Flowers; they all work in the same capacity; and they all signed the same documentation setting forth the expected nature of their relationship with Flowers. [Id. at 12.]

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Whether Flowers violated the [Pennsylvania wage law] is susceptible to class-wide proof. Because Plaintiffs assert that the same agreements and practices governed their earnings from Flowers, the inquiry of whether a contractual obligation to pay wages existed may be shown through common evidence such as the Distributor Agreements and the weekly settlement agreements. Further, Plaintiffs assert that their claim turns on categorical deductions that Defendants routinely take out of distributors’ pay, which can be demonstrated through the weekly settlement agreements and Defendants’ internal records regarding the various categories of deductions. [Id. at 35.]

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[C]ommon questions will predominate over individual inquiries in applying [Maryland’s] common-law employment classification] factors …. [T]he focus in resolving this claim will be on the right to control—which may be proven through the common evidence regarding the Distributor Agreements, the large chain accounts, and the prevailing training and discipline policies.… [B]ecause the most important factor—right to control—is provable through common evidence, as are the balance of the remaining factors, the [Maryland wage law] misclassification claim is susceptible to class-wide determination. [Id. at 38.]

As noted, this is the third class case to be granted class certification. Previous certifications include Rehberg (North Carolina) and Noll (Maine). Of the six class actions, two have already reached settlements: Rehberg and Coyle (Arizona). Conditional class certification has also been granted in Neff (Vermont, New Hampshire, Massachusetts, Connecticut, Rhode Island and portions of New York) and Rosinbaum (a second case in North Carolina). Arguments in those cases are pending.

Congratulations to firm partners Shawn Wanta, Scott Moriarity, and others who help secure these victories for distributors.

For questions about this lawsuit, or for questions about independent contractor misclassification, contact our class action attorneys. Wanta Thome PLC has represented hundreds of workers and recovered millions of dollars in class action lawsuits alleging misclassification of independent contractors.