Takeaway: Employers should promptly challenge the inclusion of out-of-state workers in a proposed Fair Labor Standards Act collective action. A timely jurisdictional challenge at the outset may reduce the scope and cost of collective action litigation.
A federal appeals court held that a Vermont district court lacked personal jurisdiction over the Fair Labor Standards Act (FLSA) claims of out-of-state delivery drivers. The case turned on whether the FLSA permits a district court to authorize notice to potential opt-in plaintiffs whose claims have no connection to the forum state.
The named plaintiffs were delivery drivers who distributed baked goods to Vermont retailers for a national baked goods company. They alleged that the defendant misclassified them as independent contractors, thereby depriving them of overtime pay required under the FLSA. They sued individually and on behalf of drivers working in Vermont, Connecticut, and New York.
The district court authorized notice to potential opt-in plaintiffs in all three states, rejecting the employer’s argument that the U.S. Supreme Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court of California barred jurisdiction over the out-of-state drivers’ claims. The district court reasoned that Bristol-Myers, which involved state court adjudication of state law claims, did not apply to federal claims brought in federal court. The employer sought and obtained certification of the jurisdictional question on appeal.
The 2nd U.S. Circuit Court of Appeals reversed. Because the FLSA does not authorize nationwide service of process, the court explained, a district court’s jurisdictional reach is coextensive with that of its state counterpart. Vermont’s long-arm statute extends jurisdiction only to the limits of the 14th Amendment’s due process clause. The out-of-state drivers’ claims did not arise from the employer’s contacts with Vermont, and jurisdiction over those claims was therefore improper under Bristol-Myers.
The court rejected three arguments advanced by the plaintiffs. First, the plaintiffs argued that the Fifth Amendment’s more flexible due process standard should govern federal courts rather than the 14th Amendment standard applied in Bristol-Myers. The court acknowledged that the Fifth Amendment permits broader jurisdiction in principle but held that district courts may only exercise the authority Congress has granted, and Congress has not done so in any statute or rule that applies to this case.
Second, the plaintiffs analogized FLSA collective actions to Rule 23 class actions, where some courts have found that jurisdiction need not be established claim by claim. The court rejected this analogy. Unlike certified class members, FLSA opt-in plaintiffs retain independent claims, are subject to distinctive defenses, and may appeal rulings separately. The jurisdictional inquiry must therefore proceed on a claim-by-claim basis.
Third, the plaintiffs argued that Rule 4 of the Federal Rules of Civil Procedure, which governs service of process, applied only at the outset of the case when the employer was initially served, and did not constrain the court’s jurisdiction over claims brought by opt-in plaintiffs added later. The appeals court disagreed, explaining that serving a summons opens the courthouse door but does not give the court unlimited authority over every claim that follows. A court must have independent jurisdictional authority over each claim it resolves, and the initial service of process on the employer cannot supply that authority for the separate claims of out-of-state opt-in plaintiffs.
The 2nd Circuit held that before conditionally certifying an FLSA collective action and authorizing notice to potential opt-in plaintiffs, a district court must ensure it has personal jurisdiction over the defendant with respect to those plaintiffs’ claims.
Provencher v. Bimbo Foods Bakeries Distribution LLC, 2nd Cir., No. 24-3112 (May 4, 2026).
Natalie F. Bare is an attorney with Greenberg Traurig in Philadelphia.
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