Labor & Employment – FLSA – Collective Action Certification – Bakery Distributors – Contractors or Employees

McCurley v. Flowers Foods, Inc. (Lawyers Weekly No. 002-207-16, 11 pp.) (J. Michelle Childs, J.) 5:16-cv-00194; D.S.C.

Holding: Plaintiff alleges that, pursuant to defendants’ common policy of misclassifying baked-goods distributors as independent contractors, he and “class members have been denied the rights and benefits of employment, including … overtime pay.” Since the record supports the assertion that distributors were considered by defendants’ policy to be independent contractors, plaintiff has demonstrated that he and the proposed class members are similarly situated as to their alleged misclassification as independent contractors.

The court will conditionally certify a class of distributors and order notice to be sent to the class.

Defendant Derst Baking Co. operates eight warehouses in South Carolina and ten warehouses in Georgia. The evidence allows for the inference that all of DBC’s distributors work pursuant to distributor agreements that define them as independent contractors. Therefore, the court preliminarily concludes that distributors in Georgia, who are also subject to the same policy that allegedly misclassifies them as independent contractors, should be included in this class, along with distributors in South Carolina.