Class Action Claims Flowers Food, Subsidiary Misclassified Distributors, Owe Unpaid Overtime

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A proposed class action alleges Flowers Foods, Inc. and subsidiary Derst Baking Company LLC have misclassified distributors as independent contractors and denied them proper overtime wages.

The 14-page case, filed by a former employee, claims the distributors, who are tasked with delivering the defendants’ packaged bakery products to customers, should have been classified as bona fide employees entitled to time-and-a-half overtime wages given the level of control Flowers and Derst maintained over their day-to-day job duties.

According to the suit, Flowers Foods distributors are non-exempt employees whose jobs do not require the exercise of independent discretion or management of the defendants’ enterprise.

“Defendants’ mischaracterization of the Distributors as independent contractors, the concealment or non-disclosure of the true nature of the relationship between Defendants and the distributors, and the attendant deprivation of substantial rights and benefits of employment are part of an on-going unlawful practice by Defendants which this Court should enjoin,” the complaint scathes.

Flowers Foods distributors purchase the right to distribute the defendants’ products in a particular area and are responsible for picking up bakery products from the companies’ warehouses and delivering them to customers in addition to stocking shelves with fresh products and removing stale items, the case begins. Per the suit, distributors are required to lease trucks from the defendants and purchase insurance and vehicle financing through Flowers Foods.

The suit claims that although the drivers are classified as independent contractors, the defendants exercise “significant control” over distributors’ job duties, including by assigning their delivery stops; specifying their delivery routes; disciplining them for taking time off or refusing an order; and setting the pricing, policies and procedures between Flowers and its customers. According to the case, each distributor was required to arrive at the defendants’ warehouse at a particular time, deliver the products as specified by the defendants and return to the warehouse between 5:00 and 6:00 p.m. each evening to return stale products.

The suit alleges that if distributors were late making deliveries, they were subject to reprimand by sales managers, who had the authority to discipline and terminate the workers.

According to the case, distributors were responsible to pay for their uniforms, the costs of leasing and insuring box trucks from the defendants, the expense of using their own personal vehicles to perform certain job duties, the cost of stale items that the distributor failed to timely return to Flowers’ warehouses and $75 plus mileage anytime a distributor refused a “call-back” from a customer to deliver more products after servicing their route for the day. Moreover, the defendants took weekly deductions from distributors’ wages for their use of a handheld computer to log deliveries and use of the warehouse, the complaint says.

The lawsuit contends that the level of control the defendants maintained over distributors, as well as the fact that the workers’ job duties required no specialized skills, indicates they should have been treated as non-exempt employees entitled to overtime pay. According to the suit, distributors frequently worked more than 40 hours per week and should have received time-and-a-half wages for those over-40 hours.

The case looks to cover current and former distributors who worked for Flowers Foods and Derst Baking Company during the statutory period covered by the lawsuit.

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