On May 4, 2026, the U.S. Court of Appeals for the Second Circuit joined a growing majority of federal appellate courts holding that courts must establish personal jurisdiction over the claims of each member of a collective action under the Fair Labor Standards Act (“FLSA”) for those putative members to be permitted to be sent notice of the action.
In Provencher v. Bimbo Foods Bakeries Distrib. LLC, Vermont-based delivery drivers sued Bimbo in the United States District Court for the District of Vermont on behalf of themselves and others similarly situated. The drivers claimed that Bimbo had misclassified them as independent contractors and routinely denied them overtime compensation in violation of the FLSA.
Plaintiffs moved to conditionally certify the FLSA collective action, requesting to notify similarly situated drivers in Vermont, Connecticut, and New York about their opportunity to join the lawsuit. Bimbo opposed the motion, asserting that the U.S. Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255 (2017) (“BMS”) prohibited the court from exercising personal jurisdiction over it with respect to claims by drivers outside of Vermont. The district court disagreed, and allowed the plaintiffs to notify putative out-of-state collective members.
The Second Circuit reversed on appeal. Citing BMS, the Second Circuit held that the Vermont federal court lacked personal jurisdiction over FLSA claims asserted by out-of-state plaintiffs’ against Bimbo, an out-of-state defendant. Nothing in the record suggested that Bimbo’s Connecticut or New York drivers suffered FLSA violations arising from Bimbo’s contacts with Vermont. Although Bimbo used the same distribution protocol across all three states, the Second Circuit held that mere uniformity of corporate practice is insufficient to transform out-of-state dealings into in-state contacts.
With this ruling, the Second Circuit joined the Third, Sixth, Seventh, Eighth, and Ninth Circuits in holding that a district court must ensure that it has personal jurisdiction over all putative plaintiffs’ claims before the potential collective members may be sent notice of acertified FLSA action. In August 2024, we discussed the Seventh Circuit’s decision to apply BMS’s personal jurisdiction analysis in FLSA collective actions, and in July 2025, we reported on the Ninth Circuit’s decision to do the same.
In short, with this decision the Second Circuit becomes the most recent federal appellate court to apply BMS’s rule to FLSA collective actions. Nevertheless, the circuit split remains in place until the U.S. Supreme Court weighs in on the issue (which it declined to do after the Ninth Circuit’s decision in Harrington v. Cracker Barrel Old Country Store, Inc., 142 F.4th 678 (9th Cir. 2025)). For now, the Provencher decision is another positive one for employers facing FLSA collective actions because it may (1) compel plaintiffs to file suit in a jurisdiction where a company has substantial contacts, or (2) result in smaller FLSA collectives.
For more in-depth commentary on the Provencher decision by Labor and Employment Shareholder James P. Looby, please see his recent contributions to the Law360 Employment Authority here.
