Suit Says Flowers Foods Distributors Should Receive Overtime Pay [UPDATE]
by Erin Shaak
Last Updated on November 11, 2021
Wiatrek v. Flowers Foods, Inc. et al.
Filed: August 15, 2017 ◆§ 5:17-cv-00772
Flowers Foods, Inc. and subsidiary Flowers Baking Co. of San Antonio, LLC are facing a proposed collective action alleging they misclassified product distributors as independent contractors and failed to pay them proper overtime wages.
Texas
Case Updates
November 11, 2021 – Lawsuit Settled
A $201,500 deal has been reached to settle the claims detailed on this page.
According to court documents, the 11 individuals who opted into the collective action were to receive an average of $4,500 each in exchange for releasing their claims against the defendants.
The settlement also provided for the establishment of a distributor advocate and distributor review panel to allow for more efficient dispute resolution. As explained in the parties’ August 2018 motion for approval of the settlement, the distributor advocate would represent the interests of the distributor to resolve issues with bakery management that could not be resolved on a local level. Distributors could also appeal to the review panel to resolve contract-related disputes.
The motion also noted that distributors would be required to sign an amended distributor agreement containing an arbitration provision. While the provision would waive distributors’ rights to pursue class actions against Flowers Foods, the individuals could, through arbitration, “recover the same types of damages available in Court” and Flowers Foods would agree to pay for all the costs and fees associated with arbitration, the parties stated.
The judge overseeing the case approved the settlement on August 31, 2018.
Flowers Foods, Inc. and subsidiary Flowers Baking Co. of San Antonio, LLC are facing a proposed collective action alleging they misclassified product distributors as independent contractors and failed to pay them proper overtime wages. The plaintiff, who currently works for the defendants, says he and other distributors are responsible for delivering baked goods to retailers and managing the defendants’ in-store stock. He claims that because of the heavy workload and his purported status as an independent contractor, he was forced to hire another individual to help him with his route. Even with the extra help, however, he allegedly works 55 hours per week without receiving overtime wages.
The suit alleges the plaintiff and other distributors should be classified as employees rather than independent contractors because they lack control over most aspects of their job; the work does not demand a significant investment from them, the case says, and they are not required to possess “specialized skills” for the position. In fact, the defendants maintain control over product pricing, sales and promotions, customer complaints, where products are distributed, and various other details that true independent contractors would be expected to decide, the complaint says.
The case seeks to restore “the rights and benefits of employment,” including overtime wages, for the following proposed collective:
“All individuals who, through a contract with Defendants or otherwise, performed or perform as Distributors for Defendants under an agreement with Flowers Baking Co. of San Antonio and who were classified by Defendants as ‘independent contractors’ (collectively ‘Covered Positions’) from the date that is three years preceding the commencement of this action through the close of the Court-determined opt-in period, who file a consent to join this action…and who currently compensate or have compensated a helper(s) to assist with the responsibilities of their route.”
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