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.