The U.S. Department of Labor has intervened in a case involving three Vermont delivery truck drivers who sued a multinational baking conglomerate for allegedly misclassifying them as independent contractors.
The drivers — Arthur Provencher of South Hero, Michael McGuire of Colchester, and Ronald Martel of Essex — filed a class action lawsuit last October on behalf of fellow drivers in Vermont, New York and Connecticut. They claim that the U.S. subsidiaries of the Mexican baking giant Grupo Bimbo violated the federal Fair Labor Standards Act and Vermont’s Fair Employment Practices Act by misclassifying them and depriving them of overtime pay.
Bimbo, which owns a variety of well-known brands — including Entenmann’s, Thomas’ and Sara Lee — countersued the drivers, seeking money they made while delivering for the company. That prompted the Department of Labor to step in and ask the court to dismiss the counterclaim, arguing that federal law prohibited Bimbo from taking action against workers seeking back wages.
“Companies use counterclaims like this one to circumvent the requirements of the Fair Labor Standards Act,” U.S. Solicitor of Labor Seema Nanda said in a written statement. “These companies want to have it both ways — they want the benefits of not paying overtime wages and, if a court says they must pay under the FLSA, they want their employees to reimburse them for their own violations of the law. That is simply not allowed.”
Provencher, Martel and McGuire pick up baked goods at a Bimbo distribution center in Williston to deliver them to customers. According to their complaint, filed in U.S. District Court in Burlington, Provencher works 51 hours a week and Martel and McGuire each work more than 40 hours.
The three drivers say they arrive at the Williston distribution center early in the morning to load their trucks, then deliver the fresh baked goods to retailers, including Shaw’s, Wal-Mart, Hannaford and Dollar General, placing them on store shelves and taking stale goods off the shelves. They also make promotional displays.
According to the complaint, Bimbo negotiates prices, shelf space, what products are sold and how they are advertised directly with the retailers. The drivers have to use hand-held computers issued by Bimbo to keep track of sales. Drivers may not negotiate prices, according to the drivers’ complaint, nor space on store shelves, nor may they handle customer complaints on their own.
Those circumstances, they argue, make them employees of the subsidiary, Bimbo Bakeries USA, and therefore make them qualified for overtime pay.
A spokesperson for Bimbo Bakeries USA, John Reynolds, declined to comment.