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Carr v. Flowers Foods, Inc.

United States District Court, E.D. Pennsylvania

January 9, 2017

MATTHEW CARR, TERRY CARR, DAVID TUMBLIN, and GREGORY BROWN, individually and on behalf of all similarly situated individuals, Plaintiffs,
v.
FLOWERS FOODS, INC. and FLOWERS BAKING CO. OF OXFORD, LLC, Defendants. LUKE BOULANGE, on behalf of himself and all others similarly situated, Plaintiffs
v.
FLOWERS FOODS, INC. and FLOWERS BAKING CO. OF OXFORD, LLC, Defendants.

          MEMORANDUM

          STENGEL, J.

         The plaintiffs in this employment case have filed a Motion for Conditional Certification pursuant to the Fair Labor Standards Act. They allege that the defendants, Flower Foods, Inc. and Flower Baking Co. of Oxford, LLC, misclassified their bakery distributor drivers as independent contractors, thereby depriving them of the overtime pay to which they are entitled under the FLSA. I find that the plaintiffs have shown, by a preponderance of the evidence, that the group for which they seek conditional certification contains similarly situated individuals. I e will therefore grant the plaintiffs' motion for conditional certification.

         I. FACTUAL BACKGROUND[1]

         Defendant Flower Foods is a corporation that develops and markets bakery products for national sale and distribution through its network of subsidiaries. Defendant Flower Baking Co. of Oxford bakes products for distribution in a certain geographic region and operates as Flower Foods' local sales and distribution force.

         The plaintiffs are bakery distributors who pick up baked goods from one of the Oxford warehouses and deliver them to retailers and restaurants. As distributors, the plaintiffs "purchase" the right to distribute certain bakery and snack food products to the defendants' customers in a defined territory, pursuant to the terms of a "Distributor Agreement" that all distributors must sign. The plaintiffs assert that these agreements are substantially similar in all respects, and that, even though under these agreements the distributors are classified as independent contractors, in practice their adherence to the terms of the distributor agreements renders them employees for purposes of the overtime pay protections of the Fair Labor Standards Act.

         II. DISCUSSION

         The plaintiffs seek conditional certification pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b). Section 216(b) provides that an employee may bring a suit regarding minimum-wage, maximum-hour, and overtime violations against the employer individually, or, collectively on behalf of other "similarly situated" employees.[2] Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1527 (2013). Those employees must affirmatively opt in to a collective action by filing written consent with the court if they wish to become parties to a collective action. Id.

         The Third Circuit Court of Appeals has adopted a two-step process for deciding whether an action may properly proceed as a collective action under FLSA. Camsei v. University of Pittsburgh Medical Center, 729 F.3d 239 (3d Cir. 2013) (citing and quoting Zavala v. Wal Mart Stores, Inc., 691 F.3d 527 (3d Cir. 2012)). At the first step, the plaintiffs have the burden to show, by a preponderance of the evidence, that the parties are "similarly situated." The district court will make a finding of fact regarding whether the members are "similarly situated" and, if the plaintiffs meet their burden, the court will conditionally certify the collective action for purposes of facilitating notice to potential opt-in plaintiffs and conducting pre-trial discovery. Zavala, 691 F.3d at 534; Camesi, 729 F.3d at 243. "At the second stage, with the benefit of discovery, 'a court following this approach then makes a conclusive determination as to whether each plaintiff who has opted in to the collective action is in fact similarly situated to the named plaintiff.'" Camesi, 729 F.3d at 243 (quoting Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 193 (3d Cir. 2011), rev 'd on other grounds, Symczyk, 133 S.Ct. 1523, 1526(2013)).

         Courts apply a "fairly lenient standard" in making a preliminary determination about whether the named plaintiffs have made a "modest factual showing" that the employees identified in the complaint are "similarly situated." Camesi, 729 F.3d at 243 (quoting Zavala, 691 F.3d at 535-36, 536 n.4). Relevant factors regarding the "similarly situated" analysis include, but are not limited to, whether the plaintiffs (1) are employed in the same department, division, and location; (2) advance similar claims; (3) seek substantially the same form of relief; and/or (4) have similar salaries and circumstances of employment. Zavala, 691 F.3d at 536-37.

         Ultimately, under this "modest factual showing" standard, "a plaintiff must produce some evidence, beyond pure speculation, of a factual nexus between the manner in which the employer's alleged policy affected him/her and the manner in which it affected other employees." Zavala, 691 F.3d at 536 n.4 (quoting Symczyk, 656 F.3d at 193) (additional citation and quotation marks omitted). The Third Circuit has noted that "[b]eing similarly situated does not mean simply sharing a common status, like being an illegal immigrant. Rather, it means that one is subjected to some common employer practice that, if proved, would help demonstrate a violation of the FLSA." Zavala, 691 F.3d at 538.

         I will first address whether the proposed class of opt-in plaintiffs are similarly situated, and then address the proposed form of notice that the plaintiffs requested.

         A. The Proposed Class

         The plaintiffs' proposed class consists of the following members:

All persons who are or have performed work as "Distributors" for either Defendant under a "Distributor Agreement" or a similar written contract with Defendant Oxford Baking Co. 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 ...

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