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Camp v. Bimbo Bakeries USA, Inc.

United States District Court, D. New Hampshire

February 4, 2019

David Camp and Keith Hadmack, on behalf of themselves and all others similarly situated, Plaintiffs
Bimbo Bakeries USA, Inc. and Bimbo Foods Bakeries Distribution, LLC, Defendants


          Steven J. McAuliffe United States District Judge.

         David Camp and Keith Hadmack bring this wage and hour collective action, asserting that defendants unlawfully treated them as independent contractors when, in fact, they were employees. As a consequence, say plaintiffs, they were wrongfully denied overtime pay, refused reimbursement for work-related expenses, and subjected to unlawful withholdings from their pay. Having survived defendants' motion to dismiss, plaintiffs now move the court to grant them conditional certification of a collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.

         For the reasons discussed, plaintiffs' motion for conditional certification is granted.


         The factual backdrop to this action was set out in the court's earlier order denying defendants' motion to dismiss (document no. 45) and need not be recounted in detail. It is sufficient to note that Bimbo Bakeries USA and Bimbo Foods Bakeries Distribution (collectively, “Bimbo Bakeries”) are in the business of manufacturing, selling, and delivering baked goods under brand names that include Sara Lee and Nature's Harvest. Plaintiffs are among the fifty or so “distributors” in New Hampshire who deliver Bimbo Bakeries products to stock shelves in various stores.

         The parties dispute whether plaintiffs (and similarly situated individuals) are entitled to overtime pay under the FLSA. Bimbo Bakeries contends that all of its distributors are independent contractors and, therefore, not entitled to overtime. Plaintiffs, on the other hand, contend that they are actually employees, who were wrongfully denied overtime pay. As noted above, plaintiffs seek conditional certification of a collective action under the FLSA.

         The FLSA and Collective Actions

         The portion of the FLSA addressing collective actions provides that:

An action to recover the liability prescribed in the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No. employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b) (emphasis supplied). Thus, a “collective action” under the FLSA differs from a “class action” under Rule 23 of the Federal Rules of Civil Procedure. While Rule 23 provides that potential members of a class action must opt out of the litigation if they choose not to participate, the FLSA provides that those individuals who are “similarly situated” to the plaintiff must affirmatively opt into a collective action if they wish to participate. Compare 29 U.S.C. § 216, with Fed.R.Civ.P. 23. See also Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1043 (2016) (“while a class under Rule 23 includes all unnamed members who fall within the class definition, the sole consequence of conditional certification under § 216 is the sending of court-approved written notice to employees[, ] who in turn become parties to a collective action only by filing written consent with the court.”) (citation and internal punctuation omitted).

         I. Conditional Certification.

         Courts within the First Circuit typically employ a two-step approach to certification of collective actions under section 216(b) of the FLSA. See Johnson v. VCG Holding Corp., 802 F.Supp.2d 227 (D. Me. 2011); Prescott v. Prudential Ins. Co., 729 F.Supp.2d 357 (D. Me. 2010). In Prescott, Judge Hornby explained that two-step process as follows:

[T]he certification of a collective action typically proceeds in two stages. The first stage determines whether notice should be given to potential collective action members and usually occurs early in a case, before substantial discovery, based only on the pleadings and any affidavits which have been submitted. At the first stage, the plaintiff has the burden of showing a reasonable basis for her claim that there are other similarly situated employees. In other words, the plaintiff must make a modest factual showing that she and other employees, with similar but not necessarily identical jobs, suffered from a common unlawful policy or plan. The standard at the initial stage has been called “not particularly stringent, ” “fairly lenient, ” “flexible, ” “not heavy, ” and “less stringent than that for joinder under Rule 20(a) or for separate trials under 42(b). Under this “fairly lenient” standard, the initial stage analysis typically results in conditional certification of a collective action.
Later, when discovery is complete, an employer may move to decertify the collective action. This is the “second” stage, and the court must then make a factual determination as to whether there are similarly-situated employees who have opted in. Factors relevant to the stage-two determination include: factual and employment settings of the individual plaintiffs, the different defenses to which the plaintiffs may be subject on an individual basis, and the degree of fairness and procedural impact of certifying the action as a collective action. If the court ...

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