Herr Food’s Deliver Drivers Win Collective Certification in FLSA Dispute in Philadelphia

In a federal overtime lawsuit filed against Herr Foods, inc. asserting violations the Fair Labor Standards Act, a class of Delivery Drivers who claim they they were wrongfully denied overtime because the company misclassified them as sales persons exempt from the overtime requirements from the law, have obtained conditional collective action certification after a hard-fought court fight. Individuals working as “Route Sales Persons” for Herr’s during the class period will be provided notice of the lawsuit and an opportunity to join the lawsuit following the Court’s decision.

PHILADELPHIA: On March 2, 2015, the United States District Court for the Eastern District of Pennsylvania entered an order conditionally certifying a class of route sales persons who are or were employed by Herr’s at any point from November of 2011 through the present. The route sales persons contend that Herr’s violated the Fair Labor Standards Act (“FLSA”) by not paying them overtime wages for hours worked over 40 hours in a workweek.

Herr’s, a snack food company based in Nottingham, Pennsylvania, employs route sales persons to deliver its products to retailers throughout the mid-Atlantic region. After a week of post-hire training in Nottingham and several weeks of further training at a Herr’s branch, Herr’s route salespersons are assigned a delivery route. Herr’s route sales persons deliver, stock, and merchandise Herr’s products at retailers along their assigned routes. The route sales persons provide the primary contact between Herr’s and the retailers that sell its products to consumers. Herr’s pays its route sales persons either a salary and a commission on sales of products that exceed a certain amount or straight commission. The route sales persons’ duties regularly require them to work over 40 hours each workweek.

Now that the case has been conditionally certified, the parties will send a Court-supervised notice to all current and former route sales persons who worked for Herr’s from November 2011 through the present informing them of the lawsuit and how they can join it.

The lawsuit began in October 2013 when Kalvin Drummond, a former routes sales person of Herr’s South Philadelphia Branch, filed a complaint in federal court in Philadelphia, Pennsylvania asserting that the Herr’s failed to pay him and other route sales persons overtime wages as required by the FLSA and Pennsylvania state wage and hour laws because Herr’s illegally classifying them as exempt from the overtime provisions of those laws. Since the filing of the lawsuit, more than 10 other route sales persons from the South Philadelphia Branch have signed consent forms to join the lawsuit as Opt-in Plaintiffs.

In August 2014, Herr’s filed a motion for summary judgment as to the FLSA claims of one of the route sales persons who opted into the case. Herr’s argued that the class member’s primary duty as a route sales person was selling Herr’s products to the retailers along her route. Under the FLSA, employees whose primary duty is making sales may be exempt from being paid overtime as outside sales persons. In opposition to Herr’s motion, the employee argued that her driving, delivering, and stocking duties were her most important or primary duties. The Court held that the undisputed material facts did not support Herr’s contention that the employee was an exempt outside sales person as a matter of law and that whether the exemption applied to Jones would have to be decided by a jury at trial.

The Plaintiffs then filed their motion for conditional certification in November 2014. In granting Plaintiffs’ motion, the District Court held that Plaintiffs had easily met their burden to demonstrate that Herr’s route sales persons were “similarly situated” with respect to their employment at Herr’s to the Named Plaintiffs who filed the lawsuit. The Court noted that “Plaintiffs submitted evidence of similar job responsibilities, training, and compensation structure among [route sales persons]. Plaintiffs performed the same basic daily tasks and can still be similarly situated even though different [route sales persons] were responsible for different accounts.”

Herr’s opposition to conditional certification rested on arguments that individualized analysis would be required to determine the exemption status of each route sales person due to differences in route sales persons’ compensation packages, training, job duties, and the decentralized nature of Herr’s sales operations. However, the Court found that Herr’s arguments were best left for the next stage of FLSA collective action certification where “the Court must decide whether the plaintiffs who have opted in are in fact similarly situated to the named plaintiff. At that point in time, the Court will consider disparate factual and employment settings of the named plaintiffs.” The Court went on to note that Plaintiffs had submitted many Herr’s route sales person job postings from across the country and that “regardless of the location of the opening, the job descriptions, including the essential duties and responsibilities, and the required skills, including qualifications and physical demands, appear identical for all of the openings.” The evidence before the Court demonstrated that “Herr’s treats the far more than ‘500 [route sales persons] nationwide’ the same for purposes of [the] FLSA.”

Swartz Swidler, LLC represents the route salespersons in their fight for overtime wages. Swartz Swidler focuses much of its practice on nationwide wage and hour litigation. Swartz Swidler has filed numerous complaints around the country seeking wages for employees under the FLSA and state wage laws, and is currently class counsel in a class action against Werner Enterprises where they represent more than 52,000 truck drivers. The exact size of the class in the Herr’s lawsuit is not yet known, although it is suspected that the class will contain more than 1,000 route sales persons.

If you have worked for Herr’s at any point since November of 2011, you may file a Consent Form to join the FLSA litigation here.

Posted in Federal FLSA Collective Actions, Minimum Wage, New Jersey (NJ) Discrimination Law, Off-the-Clock, Overtime, Pennsylvania Discrimination Law, Pennsylvania Minimum Wage Act, Pennsylvania Overtime Class Actions, Pennsylvania Wage Payment Collection Law, Pre-Shit Work, Uncategorized, Unpaid Meal Breaks | Tagged , , , , , , , , , , | Leave a comment

G.E. Techs File Class Action Lawsuit for wages

CAMDEN, NEW JERSEY: As reported by numerous media outlets, including the Philadelphia Inquirer, several service technicians employed by General Electric in 6 states have filed a putative collective and class action lawsuit in federal court against General Electric (G.E.) asserting that they were denied wages for pre-shift work, post-shift work and missed meal breaks in violation of the Fair Labor Standards Act (“FLSA”) and state law.

The lawsuit was filed in the United States District Court for the District of New Jersey in Camden.  Richard Swartz and Justin Swidler of Swartz Swidler, LLC, Alan Eichenbaum, and Robert Soloff represent the workers in their fight for wages.  More information regarding the lawsuit, as well as information regarding how you can join the lawsuit if you are a potential plaintiff, is available here.

Posted in Federal FLSA Collective Actions, Minimum Wage, New Jersey Wage Payment Law, Off-the-Clock, Pennsylvania Minimum Wage Act, Pennsylvania Overtime Class Actions, Pennsylvania Wage Payment Collection Law, Pre-Shit Work | Tagged , , , , , , , , , , , , , , , , , , | Leave a comment

C.R. England Class Action Lawsuit Growing

As reported today by Swartz Swidler, LLC, as of today, more than 2,100 drivers have joined the C.R. England Class Action Lawsuit.  The lawsuit asserts that C.R. England violated federal wage and hour law, and specifically, the Fair Labor Standards Act (FLSA), by paying its drivers below the minimum wage.

You can learn more about the lawsuit, by visiting Swartz Swidler on the web.  Swartz Swidler, LLC is an employment law firm based in Cherry Hill that focuses on wage and hour litigation in the trucking industry.  The law firm represents more than 50,000 truck drivers nationwide in various wage and hour disputes.


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Truck Drivers bring FLSA minimum wage lawsuit in Federal Court

Earlier this week, Swartz Swidler, LLC, an employment law firm based in Cherry Hill, NJ which focuses on nationwide FLSA litigation, filed a lawsuit the federal court in Dallas, Texas asserting FLSA violations committed by Stevens Transport.

According to the lawsuit filed in Northern District of Texas, Stevens Transport violated the law by failing to pay its drivers for certain compensable time spent during their training program, including for time logged in a sleeper berth and for some compensable rest periods.

Swartz Swidler, LLC has focuses a significant amount of effort in fighting for wages of over-the-road truck drivers.  The Firm is currently litigating cases against Werner and C.R. England.  For more information regarding the lawsuit against Stevens Transport, you can visit visit the official Stevens Transport Class Action website.

Posted in Federal FLSA Collective Actions, Minimum Wage, New Jersey (NJ) Wage and Hour, New Jersey Wage Payment Law, Off-the-Clock, Pennsylvania Minimum Wage Act, Pennsylvania Wage Payment Collection Law, Pre-Shit Work, Uncategorized, Unpaid Meal Breaks | Tagged , , , , , , , , , , , | Leave a comment

Sexual Harassment and Discrimination Lawsuit Filed in Philadelphia

New Jersey (NJ) and Pennsylvania (PA) wrongful termination and employment attorneys, Swartz Swidler, LLC, filed a lawsuit in federal court in Philadelphia, PA on behalf of an employee who contends that she was subjected to sexual harassment and wrongfully discharged for complaining about same.  Read More.

Posted in Discrimination, New Jersey (NJ) Discrimination Law, New Jersey Law Against Discrimination, Pennsylvania Discrimination Law, Sexual Harassment, Title VII, Wrongful Termination | Tagged , , , , , , , , , , | Leave a comment

Disability Discrimination Lawsuit Filed

On May 3, 2013, Swartz Swidler, LLC filed a federal discrimination lawsuit in Harrisburg, Pennsylvania, on behalf of a grieved employee who asserts he was wrongfully terminated in violation of the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”).  Read More.

Posted in Americans with Disabilities Act, Disability Discrimination Law, Discrimination, Failure to Accommodate, Pennsylvania Discrimination Law, Title VII, Wrongful Termination | Tagged , , , , , , , , , , | Leave a comment

Putative Overtime and Wage and Hour Class Action Lawsuit Filed Against Wells Fargo, N.A. Alleging Violations of the Fair Labor Standards Act (“FLSA”), Pennsylvania Minimum Wage Act (“PAWA”), and Pennsylvania Wage Payment Collection Law (“PWPCL”).

On December 10, 2012 a former employee of Wells Fargo, N.A. filed a federal lawsuit in Philadelphia asserting violations of the Fair Labor Standards Act (“FLSA”),  the Pennsylvania Minimum Wage Act (“PAWA”), and the Pennsylvania Wage Payment Collection Law (“PWPCL”).  The employee contends that the bank had a nation-wide policy requiring its tellers and bankers who opened the branch to arrive early to perform security procedures and failed to pay for such time.

Pennsylvania (PA) and New Jersey (NJ) Employment attorneys, Swartz Swidler, LLC. represent the employee in her battle to recover the overtime and unpaid wages for herself and other current and former employees.

In more depth, the lawsuit contends that employees who were assigned to open the bank were required to engage in significant pre-shift security procedures inside and outside the building. Such activities were performed off-the-clock, as the employees were unable to clock into work prior to performing the security procedures.  The lawsuit asserts that employees worked 15-20 minutes on pre-shift activities each time they were required to perform such security procedures.

The lawsuit asserts that former and current employees worked 40 hours so the pre-shift activities they were required to perform were excess time over their 40 regular hours and should have been compensated as overtime. The lawsuit contends that these pay practices, on top of the Wells Fargo’s failure to provide compensation for time spent on pre-shift work-related activities, violate state and federal wage and hour laws.

If you worked for Wells Fargo in the United States at any time within the last three years, you may be able to join the lawsuit and recover overtime wages.  For more information, please call Justin Swidler or Richard Swartz of Swartz, Swidler, LLC.  You may reach the attorneys toll free at (877) 529-9501.

Posted in Federal FLSA Collective Actions, Off-the-Clock, Overtime, Pennsylvania Overtime Class Actions, Pennsylvania Wage Payment Collection Law, Pre-Shit Work | Tagged , , , , , , , , , , , | Leave a comment

Federal Court in Williamsport, Pennsylvania Grants FLSA Conditional Class Certification to Oil Workers of Precision Drilling in Overtime Pay Dispute

On January 7, 2013, the Federal District Court for the Middle District of Pennsylvania granted conditional class certification, certifying a nationwide class of hourly rig employees of Precision Drilling, which has a US headquarters in Houston, Texas but which provides drilling service for many natural gas wells throughout central Pennsylvania.

The employees contend that the company fails to pay for donning and doffing time, and further fails to pay employees for time spent walking from the donning and doffing location to a safety meeting location.  They further assert that portions of the safety meeting are unpaid.  The employees contend that the time they are not paid is time worked beyond 40 hours per workweek, constituting violations of the overtime provisions of the Fair Labor Standards Act.

While the precise number is not known at this time, it is believed that the nationwide class will reach more than 5,000 employees.  The employees are represented by Justin Swidler and Richard Swartz of Swartz Swidler, LLC, a  New Jersey based employment law firm which focuses on wage and hour disputes.

Posted in Donning and Doffing, Federal FLSA Collective Actions, Pennsylvania Minimum Wage Act, Pennsylvania Overtime Class Actions, Pennsylvania Wage Payment Collection Law | Leave a comment

Court Grants Conditional Collective Certification Per the FLSA for a Class of more than 40,000 Truck Drivers who Assert They Were Denied Minimum Wage

On October 11, 2012,  in one of the largest wage and hour lawsuits ever to hit the trucking industry, Senior Judge Lyle E. Strom, sitting on the United States District Court for the District of Nebraska conditionally certified a nationwide FLSA class of more than 40,000 truck drivers who assert that they were systemically denied minimum wage, as required by the Fair Labor Standards Act.  The case, Philip Petrone, et al. v. Werner Enterprises, Inc., et al., asserts that Werner Enterprises, a publicly traded trucking company and one of the 20 largest trucking companies in the United States, paid newly hired employees below the minimum wage while the new hires attended a 6-8 week over-the-road training program.  A motion to certify a class pursuant to Rule 23 based on Nebraska state law is pending.

While many industries are becoming accustomed to large FLSA collective action claims, the trucking industry has largely dodged such attacks, in part because truck drivers are exempt from the overtime requirements of the FLSA.  However, over-the-road truck drivers are entitled to minimum wage for all hours worked.  According to the lawsuit, Werner used a computerized and automatic payroll system which processed payroll for all of its student drivers and which was programmed in a manner which systemically denied student drivers minimum wage.

The plaintiffs are represented by Justin Swidler and Richard Swartz of Swartz Swidler, LLC, a Cherry Hill, New Jersey based employment law firm which focuses on nationwide wage and hour disputes.

Posted in Federal FLSA Collective Actions, Minimum Wage, Overtime | Tagged , , , , , , , , , , , | Leave a comment

The United States Office of the General Counsel, Division of Operations-Management has Released a Report that Provides Guidance on Workplace Rules Governing Social Media Sites such as Facebook under the National Labor Relations Act

Due to the rapid rise of social media sites involved in the workplace such as Facebook, the United States Office of the General Counsel, Division of Operations-Management has promulgated its third report in the past year regarding workplace rules on using social media technology pursuant to the National Labor Relations Act (NLRA)As this blog has noted before, the use of social media sites in the workplace has expanded creating issues for employers and employees alike.  In an effort to manage these employment issues relating to social media, many employers have implemented rules to control the use of these sites and reduce any potential legal exposure.  This recent report provides guidance on how to structure rules that impact usage of social media sites at work.

Generally, workplace rules regarding social media use cannot restrict or infringe upon activity protected under the NLRA.  Protected activity includes discussions regarding wages and conditions of employment with third parties as well as each other.  The report provides this example as overbroad: “Don’t release confidential, guest, team member or company information.”  An employee could reasonably interpret this rule as preventing a discussion of workplace conditions and is therefore unlawful.  Similarly a policy that prevents employees from discussing any confidential workplace information is unlawful because it prevents employees from engaging in activity protected by the NLRA.  Furthermore a policy working in tandem with the above policy that requires an employee to report that confidential communications were made is unlawful because those confidential communications could regard workplace conditions or wages.  On the other hand, a policy that advises employees to be careful about divulging confidential information is lawful.

In another exemplary policy, the phrase requiring that posts are “completely accurate and not misleading and that they do not reveal non-public information on any public sit” was unlawful.  Discussions regarding workplace conditions and wages are protected and would potentially be restricted under this policy.  Moreover, any policy that forces employees to obtain permission to post any materials is facially unlawful.  Notably, a policy preventing the disclosure of secret or confidential information is lawful as long as it is “to protect the Employer’s legitimate interest in safeguarding its confidential proprietary and privileged information.”

It is also unlawful to restrict or discourage employees from friending each other as it would restrict their protected activity under the NLRA.

The report presents a policy restricting the use of social media in the workplace that is lawful under the NLRA.  In the policy itself, there are examples of acceptable and unacceptable activity to reduce the risk of ambiguity that could restrict NLRA protected activity.   It appears likely that all of the unlawful policies referenced in the report could be remedied through guiding examples that reflect how the policies do not infringe on NLRA protected activity.

If you are an employee and believe your workplace rules regarding social media sites such as Facebook infringe on your protected labor activities or you are an employer seeking guidance on writing your social media guidelines and you would like to speak to an employment attorney, please contact Swartz Swidler, LLC for a free consultation at (856) 685-7420.  You may also contact us through our website.

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