Misclassification class action moves forward against Wonder Bread manufacturer

By Mark Schremmer, Land Line associate editor | 5/10/2019

Another case involving a class of truck drivers who say they were misclassified as independent contractors is set to move forward.

On Tuesday, May 7, the U.S. District Court for the Eastern District of Pennsylvania denied Flowers Foods’ motion to decertify the collective action against the Georgia-based Wonder Bread and Nature’s Own manufacturer over misclassification and lost wages.

The class, which alleges violations against the Fair Labor Standards Act and various state wage laws, consists of drivers in Pennsylvania, Maryland and New Jersey.

The plaintiffs work as drivers and distributors for Flowers – buying the products from Flowers at a discount and then selling it to the customers and delivering the product. Flowers argues that the drivers are independent contractors, because they handle their own sales.

According to court documents, Flowers makes all of the drivers sign a distributor agreement, which labels them as independent contractors. Each distributor is assigned to a defined geographic area, making the distributor responsible for sales and deliveries within that area.

“Flowers may change the ‘terms and prices’ of its sales to distributors ‘at any time,’” the court documents stated. “Distributors must use their ‘best efforts to develop and maximize’ sales in accordance with ‘good industry practice’ and ‘cooperate’ with Flowers’ marketing and sales efforts.”

In addition, the drivers argue that many of the deliveries are to large chains, such as Walmart, and their ability to affect their own sales is minimal.

There has been an uptick in driver misclassification lawsuits since such states as California and New Jersey adopted the ABC test, which considers all workers to be employees unless the hiring business demonstrates that all of the factors are established:

  • A. That the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  • B. That the worker performs work that is outside the usual course of the hiring entity’s business.
  • C. That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

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