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Schucker v. Flowers Foods, Inc.

United States District Court, S.D. New York

August 24, 2017

ROSS SCHUCKER, TOM SHAFFER, VIRGILIO VALDEZ, EDWARD FRYAR, STEVEN HEINRICH, and SHANE BOWER, on behalf of themselves and all other employees similarly situated, Plaintiffs,
v.
FLOWERS FOODS, INC., LEPAGE BAKERIES PARK ST., LLC, C.K. SALES CO., LLC, and JOHN DOE 1-10, Defendants.

          Randy J. Perlmutter, Esq. Gary S. Graifman, Esq. Reginald H. Rutishauser, Esq. Kantrowitz Goldhamer & Graifman, P.C. Chestnut Ridge, NY Counsel for Plaintiffs

          Matthew W. Lampe, Esq. Craig Friedman, Esq. Deborah A. Sudbury, Esq. Karen Rosenfield, Esq. Jones Day Atlanta, GA New York, NY Counsel for Defendants

          OPINION & ORDER

          KENNETH M. KARAS UNITED STATES DISTRICT JUDGE

         Plaintiffs Ross Schucker, Tom Shaffer, Virgilio Valdez, Edward Fryar, Steven Heinrich, and Shane Bower ("Plaintiffs") bring this Action against Flowers Foods, Inc., Lepage Bakeries Park St., LLC, C.K. Sales Co., LLC, and John Doe 1-10 ("Defendants"), on behalf of themselves and all other employees similarly situated, alleging that Defendants misclassified them as independent contractors and seeking remedies for statutory and common law violations that denied them the rights, obligations, privileges, and benefits owed to them as employees resulting from their misclassification pursuant to the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201 et seq., New York Labor Law Articles 6 and 9 and their implementing regulations, 12 NYCRR § 138-2.1., et seq., New York Labor Law § 193 et. seq., and various provisions of the Employee Retirement Income Security Act of 1974. (See Am. Compl. (Dkt. No. 23).) Before the Court is Plaintiffs' Motion for Conditional Certification of an FLSA collective class. (See Dkt. No. 44.) For the reasons to follow, the Motion is denied.

         I. Background

         A. Factual Background

         Defendant Flowers Foods, Inc. ("Flowers Foods") is a Georgia corporation with its principal place of business in Thomasville, Georgia. (See Am. Compl. ¶ 8.) Defendant LePage Bakeries Park Street, LLC ("LePage Bakeries") is a subsidiary of Flowers Foods with its principal place of business in Auburn, Maine. (See Id. ¶ 9.) Defendant CK Sales, LLC ("CK Sales") is a subsidiary of LePage Bakeries with its principal place of business in Auburn, Maine. (See Id. ¶ 10.) Defendants conduct business through distribution facilities in New York. (See Id. ¶¶8-9.)

         Prior to October 2013, Plaintiffs performed delivery work for Defendants and were designated as "employees" through either an employment agency or Hannafords Bros., Inc., which was later acquired by Flowers Foods. (See Id. ¶¶ 20-21.) In or around October 2013, Plaintiffs were told that if they wished to continue their employment, each of them would be required to enter into a "Distributor Agreement" and begin performing their work as independent contractors. (See Id. ¶ 25.)

         Plaintiff Ross Schucker worked for Flowers Foods from in or about October 2013 through January 2015. (See Id. ¶ 2.) Plaintiff Tom Shaffer worked for Flowers Foods from in or about October 2013 through April 2016. (See Id. ¶ 5.) Plaintiffs Edward Fryar, Virgilio Valdez, Steven Heinrich, and Shane Bower worked for Flowers Foods from in or about October 2013 through the present. (See Id. ¶¶ 3-4, 6-7.) During their respective periods of employment, Plaintiffs delivered products and performed merchandising duties on behalf of Defendants in New York. (See Id. ¶¶ 2-7.)

         Plaintiffs allege that Defendants required Plaintiffs to work more than 40 hours per week, that Plaintiffs regularly worked 55-60 hours per week, and that they did not receive overtime pay or any other employment benefits. (See Id. ¶¶ 2-7, 50.) Plaintiffs further allege that Defendants derived this plan to make employees independent contractors as a willful scheme to deprive Plaintiffs of their employee benefits because they knew that Plaintiffs and all similarly situated individuals performed work that required overtime pay. (See Id. ¶ 33.)

         B. Procedural History

         Plaintiffs filed their Complaint on May 10, 2016, (see Dkt. No. 3), and an Amended Complaint on June 9, 2016, (see Dkt. No. 23). Defendants filed Answers to the Amended Complaint and Counterclaims against all Plaintiffs on July 8, 2016. (See Dkt. Nos. 29-31.) Plaintiffs filed Answers to the Counterclaims on July 29, 2016. (See Dkt. Nos. 37-39.) A case management plan and scheduling order was entered on October 11, 2016. (See Dkt. No. 43.)

         On November 23, 2016, Plaintiffs filed their Motion for Conditional Certification, seeking an order conditionally certifying their proposed FLSA collective action. (See Dkt. No. 44.) In addition to conditional certification, Plaintiffs request that the Court approve the content and manner of the notice to prospective class members and that the Court equitably toll the statute of limitations for the class members. (See Mem. of Law in Supp. of Pls.' Mot. for Conditional Certification and Judicial Notice ("Pls.' Mem.") (Dkt. No. 46).) Defendants filed their opposition on April 7, 2017. (See Defs.' Mem. of Law in Opp'n to Pls.' Mot. for Conditional Certification and Judicial Notice ("Defs.' Opp'n") (Dkt. No. 78).) On April 12, 2017, Plaintiffs filed a request for an extension of time to file a reply to Defendants' opposition, (see Dkt. No. 82), and on April 13, 2017, the application was granted, (see Dkt. No. 83). On April 24, 2017, Plaintiffs filed their reply. (See Dkt. No. 86.)

         II. ...


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