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.

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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,...

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