The Second Circuit Joins The Party: Provencher V. Bimbo Foods Closes The Door On Out-of-State FLSA Opt-Ins

The Second Circuit has officially weighed in on a long-running jurisdictional dispute in wage and hour litigation, and it’s good news for employers. In Provencher v. Bimbo Foods Bakeries Distribution LLC, No. 24-3112-cv (2d Cir. May 4, 2026), the Court held that a federal district court must have personal jurisdiction over each opt-in plaintiff’s individual claims before conditionally certifying an FLSA collective action and sending out notice. Translation: a Vermont federal court cannot sweep in Connecticut and New York drivers just because the named plaintiffs delivered bread there.

The Facts

Arthur Provencher and Michael McGuire are Vermont-based delivery drivers for Bimbo Bakeries. They claim Bimbo misclassified them as independent contractors and shorted them on overtime. Standard enough. The dispute came when they moved for conditional certification of a three- state collective covering similarly situated distributors in Vermont, Connecticut, and New York. Bimbo—incorporated in Delaware, principally based in Pennsylvania—argued under Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255 (2017), that the Vermont court lacked personal jurisdiction over the out-of-state claims.

The district court sided with the plaintiffs, reasoning that Bimbo had sufficient contacts with Vermont to justify the court’s exercise of personal jurisdiction over it, and that because the FLSA is a federal statute applying nationwide, the concerns animating Bristol-Myers (cherry-picking the laws of a state in which the defendant did not expect to litigate) were absent. Bimbo secured an interlocutory appeal, and flipped the result.

The Holding

The Second Circuit reversed, joining the substantial majority of circuits that have considered the issue and holding that “before conditionally certifying an FLSA collective action and authorizing notification of potential plaintiffs who may opt in, a district court must ensure its personal jurisdiction over the defendant with regard to the claims of those to be notified.”

The Second Circuit’s reasoning boiled down to a few key points:

FLSA collective actions are not Rule 23 class actions. The Court rejected the analogy between § 216(b) collectives and Rule 23(b)(3) class actions. Opt-in plaintiffs retain individual party status, unlike absent class members whose claims are litigated through a representative. Each opt-in must independently satisfy personal jurisdiction.

Rule 4(k)(1)(A) controls jurisdictional reach. The FLSA contains no nationwide service of process provision, so the federal court’s jurisdictional reach is tethered to Vermont’s long-arm statute, which extends to the Fourteenth Amendment’s outer limit.

Bristol-Myers applies in full force. Nothing in the record suggested Bimbo’s Connecticut or New York distributors suffered FLSA violations “arising from Bimbo’s contacts with Vermont.” The Court rejected the plaintiffs’ uniform-corporate-practice argument with a memorable line: the uniformity of corporate practice has “no more jurisdictional significance than the chemical consistency of Plavix’s ingredients.” It may give rise to similar claims, but it cannot “transform out-of-state dealings into in-state contacts.”

With Provencher, the appellate landscape is now decisively in employers’ favor: the Second, Third, Sixth, Seventh, Eighth, and Ninth Circuits all apply the holding in Bristol-Myers, with the First Circuit remaining an outlier. Importantly, this brings New York, one of the busiest federal forums for wage and hour litigation, squarely into the majority camp.

What This Means for Employers

Nationwide FLSA collectives are more difficult to pull off. Unless plaintiffs sue where general jurisdiction exists (state of incorporation or principal place of business), out-of-state opt-ins cannot ride along.

Expect more filings at headquarters. Plaintiffs’ attorneys have already been gravitating toward filing FLSA collectives in the state where a company is headquartered, the one jurisdiction where general jurisdiction is virtually guaranteed. That trend will likely continue.

Parallel state-by-state actions remain on the table. Employers may avoid one mega-collective, but they could still face parallel collective actions in multiple states. This is not a “get out of jail free” card, but rather a jurisdictional reshuffling.

The Rule 23 pivot is the real exposure. Several circuits, including the Third, Sixth, and Seventh, have held that Bristol-Myers does not apply to Rule 23 class actions. Expect plaintiffs to lean into state-law vehicles as the workaround, which may offer longer limitations periods (e.g., six years in NY and NJ), liquidated or treble damages, mandatory fee-shifting, and Rule 23 opt-out treatment rather than § 216(b)’s opt-in regime, meaning much higher participation rates. The playbook: file in the headquarters forum, plead an FLSA collective alongside a state-law Rule 23 class, and capture out-of-state employees through the Rule 23 vehicle even where Provencher limits the federal collective. Multistate employers should be reviewing whether their class-waiver arbitration agreements cover state wage claims as comprehensively as they cover the FLSA.

Looking Ahead

The Supreme Court has declined to take up this issue, denying cert in Fischer v. Federal Express Corp., 42 F.4th 366 (3d Cir. 2022) and passing on other occasions. With a circuit split now firmly entrenched—and the Second Circuit adding significant weight to the majority—it may only be a matter of time before the Supreme Court steps in. Alternatively, Congress could amend § 216(b) to provide for nationwide service of process, which would effectively moot the Bristol-Myers problem entirely and make it easier for FLSA plaintiffs to litigate their claims. Don’t hold your breath on that one.

In the meantime, Provencher gives defense counsel real ammunition at the conditional certification stage in the Second Circuit. If you’re defending a putative multistate FLSA collective action filed anywhere outside the company’s headquarters forum, this decision should be top of mind.