Employers Gain as Second Circuit Restricts Out-of-State Plaintiffs from Joining FLSA Collective Actions

Takeaways

• Relying on the U.S. Supreme Court’s Bristol-Myers decision, the Second Circuit held in Provencher that out-of-state plaintiffs cannot join an FLSA collective action. 
• The Second Circuit joins the solid majority of federal circuits in its holding.
• As a result, employers will be less vulnerable to nationwide collective actions in any jurisdiction where they are not incorporated and also do not have their principal place of business.

Related link

• Provencher v. Bimbo Foods Bakeries Distrib. LLC

Article

The U.S. Court of Appeals for the Second Circuit has joined a growing number of federal circuits to hold that would-be opt-in plaintiffs from outside the state where the case is pending cannot join a collective action under Sec. 216(b) of the Fair Labor Standards Act (FLSA) unless the court has general jurisdiction over the employer. Provencher v. Bimbo Foods Bakeries Distrib. LLC, No. 24-3112-cv, 2026 U.S. App. LEXIS 12829 (2d Cir. May 4, 2026).

The appeals court joins the near-consensus of federal appellate courts to hold that the U.S. Supreme Court’s Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255 (2017), decision applies to collective actions. Connecticut, New York, and Vermont are added to the list of jurisdictions where employers may not be subjected to nationwide collective actions of federal wage and hour, equal pay, or age discrimination claims unless the suit is brought in the state in which they are headquartered or incorporated.

With this decision, the Second, Third, Sixth, Seventh, Eighth, and Ninth Circuits hold that Bristol-Myers applies to collective actions; only the First Circuit has held otherwise.

Bristol-Myers Decision

In Bristol-Myers, a mass tort case in California state court, more than 600 plaintiffs alleged injuries caused by the company’s drug, Plavix. The Supreme Court held that the California court did not have personal jurisdiction over the claims against Bristol-Myers, a non-resident company, brought by plaintiffs from outside California.

Personal jurisdiction requires that the claims “arise out of or relate to” the defendant’s contacts with the forum state, and that jurisdictional requirement applies to each individual claim brought by each plaintiff, the Supreme Court explained. The out-of-state plaintiffs could not meet this requirement, so the California court could not hear their claims (but it could hear the claims brought by California residents).

Bristol-Myers sharply limited nationwide multi-plaintiff suits. But the Supreme Court left unanswered whether the decision applies to collective actions. That question was before the Second Circuit panel on interlocutory appeal.

Proposed Collective Action

Provencher involved a putative overtime collective action filed in Vermont federal court by bakery goods delivery drivers who claimed they were misclassified as independent contractors. The district court authorized notice of the collective action be sent to similarly situated drivers who reside and work in Vermont, Connecticut, and New York. The defendant, citing Bristol-Myers, argued that the court lacked personal jurisdiction over the defendants (who are incorporated in Delaware with their principal place of business in Pennsylvania) as to the claims of the drivers outside Vermont. The district court issued a stay and certified for interlocutory appeal the decision to send notice to drivers outside Vermont.

The Second Circuit reversed the district court, finding the court did not have personal jurisdiction over the out-of-state plaintiffs’ claims against the non-resident defendant. There was no evidence the drivers suffered FLSA violations because of the defendant’s contacts with Vermont, the appeals court explained. The plaintiffs previously argued there was a nexus between drivers in the three states because a common distribution protocol was used. “But the uniformity of the corporate practice has no more jurisdictional significance than the chemical consistency of Plavix’s ingredients,” the appeals court wrote. “It may give rise to similar theories or claims but cannot transform out-of-state dealings into in-state contacts.”

Class Actions Are Different

The Second Circuit did not address the issue of personal jurisdiction over out-of-state members of a Rule 23 class action, finding it unnecessary because class claims are “sufficiently distinguishable” from collective actions. Unlike a class action, a collective action “does not produce a class with an independent legal status” but “remains a mosaic of individual claims even after conditional certification.” Further, an unfavorable ruling has no preclusive effect on the claims of potential plaintiffs who have not opted in to the suit, the court noted.

“Because each FLSA plaintiff’s personal interests remain front and center, the jurisdictional inquiry revolves around individual claims,” the appeals court wrote. “Unlike a class representative, who can continue to represent the class even after her own claim becomes moot, a named plaintiff whose FLSA claim becomes moot cannot proceed collectively.”

Several federal appeals courts have ruled that Bristol-Myers does not apply to Rule 23 class action suits. A consensus among the courts that Bristol-Myers applies to collective but not class actions can alter plaintiffs’ calculation of where, and under what statute, to sue. This is one more element of complexity in the continuously evolving world of class-collective litigation.

The Bottom Line

There is now near unanimity among the federal courts of appeals to have ruled on the issue: Out-of-state plaintiffs cannot join a collective action unless the forum court has general jurisdiction over the defendant-employer. Where personal jurisdiction is based on specific rather than general jurisdiction, each opt-in plaintiff’s claim must have a sufficient connection to the defendant’s activities in the forum state. Courts must determine jurisdiction as to each individual claim, not just to the suit as a whole. Thus, most collectives will be limited to, at maximum, employees in the state where the suit is filed.

Therefore, in circuits that have adopted Bristol-Myers in the FLSA context, an employer may not be subjected to a nationwide collective unless the plaintiffs sue in the state where the employer is headquartered or incorporated. However, an employer still faces the prospect of a nationwide FLSA collective action brought against them in the state in which it has its principal place of business, is incorporated, or is subject to general jurisdiction.

Application of Bristol-Myers to FLSA collective actions already has caused an uptick in suits filed in the state where a company is headquartered. This trend is likely to continue. Meanwhile, the Supreme Court has rejected numerous opportunities to resolve the question, including in its current term, which suggests the Court condones the growing consensus. It may be that when the justices finally take up the matter, it will be to correct the lone outlier circuit.

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Please contact a Jackson Lewis attorney if you have questions about procedural issues impacting collective actions in the jurisdictions in which your business has operations.