June 17, 2026|Franchise Frontlines
June 17, 2026 | United States District Court for the District of Delaware | Slip Copy — Not Yet Reported (2026 WL 1746602)
Executive Summary
In a slip-copy memorandum not yet reported (2026 WL 1746602), Judge Kearney of the United States District Court for the District of Delaware granted in part and denied in part a motion to conditionally certify a Fair Labor Standards Act collective action brought by hourly production employees against DuPont Specialty Products USA, LLC and its parent, DuPont de Nemours, Inc. Named plaintiff Breana Bower alleged the defendants failed to pay her and other hourly production employees for required pre- and post-shift activities — including donning protective equipment and attending shift-change meetings — and failed to pay related overtime. Bower argued she had made the modest factual showing required at conditional certification and that both entities were her employers; the defendants argued the proposed collective was impermissibly duplicative of an earlier Ohio state-court settlement collective (Pollock), that Bower had not made the required showing and was an unfit representative, and that the parent, DuPont de Nemours, was not her employer. The court held that Bower made the modest factual showing needed to certify a collective against DuPont Specialty Products, rejected the contention that the FLSA bars a second collective for employees who did not opt into the earlier settlement, but declined to include DuPont de Nemours because Bower — who did not respond to the parent’s argument — made no modest factual showing that the holding company was a joint employer.
Relevant Background
Breana Bower worked as an hourly machine operator for DuPont de Nemours, Inc. and DuPont Specialty Products USA, LLC in Ohio from January 25, 2021 to April 1, 2025, handling chemicals and other hazardous materials. According to her complaint and supporting declarations, the defendants required her to don protective clothing and complete a shift-change meeting after clocking in but before her scheduled shift, and to finish ongoing tasks, remove her protective clothing, and attend another shift-change meeting after her shift ended, without paying her for that pre- and post-shift time or for related overtime. She alleged the defendants applied the same policy to other hourly production employees.
Before this case, other employees pursued the same unpaid-wage theory. They filed two federal cases in 2023 — in the District of Delaware and the Southern District of Ohio — and voluntarily dismissed them, after which employees filed an Ohio state-court action, Pollock v. DuPont De Nemours, Inc., in Tuscarawas County to approve a collective-action settlement. Bower did not join the Pollock settlement; she stated she became “skeptical of the result” after receiving a settlement notice quoting a payment of $50.00, far less than she believed she was owed, though a corrected notice later stated $2,202.50. Other employees likewise reported skepticism about the result, and one stated he never received notice of the earlier collective.
Bower then sued in Delaware under the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act, on behalf of herself, a proposed FLSA collective, and a proposed Ohio class of hourly production employees who did not participate in the Pollock settlement. She moved to conditionally certify a collective of all current and former hourly, non-exempt production employees paid for 40 or more hours in any workweek since April 11, 2022 who did not participate in that settlement. The defendants opposed on three grounds: that the collective was duplicative of the earlier settlement, that Bower had not made the required showing and was an unfit representative, and that DuPont de Nemours was not her employer. The matter had been reassigned to Judge Kearney from Judge Richard G. Andrews.
Decision
The court first rejected the argument that conditional certification should be denied because Bower’s proposed collective was nearly identical to the Pollock settlement collective. Noting that the Third Circuit has not addressed the “duplicative collective” issue and that district judges’ guidance “varies based on the facts,” the court read the FLSA’s plain text to allow “multiple collective actions arising from the same policies.” Because participation in an FLSA collective turns on an employee’s affirmative decision to opt in, the court reasoned it “cannot read Congress’s text to somehow limit the employee’s ability to seek their own remedy” absent “improper gamesmanship or duplicative conduct intended to delay and obstruct,” and it found no such abuse on this record. The court added that even under the discretionary approach some judges apply — weighing whether a second collective strains judicial resources — circumstances here, including employees’ concerns about the adequacy of representation in the earlier Ohio case, would still support proceeding. In a footnote, the court also observed that “[n]either claim nor issue preclusion applies to settlement agreements in [FLSA] actions to which plaintiffs in a later-filed action did not opt in.”
Turning to certification, the court applied the Third Circuit’s two-step framework, of which conditional certification is the first and “extremely lenient” step. At that stage a plaintiff need only make a “modest factual showing” of “a factual nexus” between the employer’s policy as it affected her and as it affected the proposed collective — that is, “(1) an employer policy, (2) that affected [her] in a particular way, and (3) that also affected other employees in a similar way.” The court emphasized it does not “weigh evidence or reach the merits” at this stage. Because Bower and other hourly production employees swore in declarations that DuPont Specialty Products maintained a policy of not paying them for required work performed outside their scheduled shifts, the court found the showing satisfied and conditionally certified the collective against DuPont Specialty Products, rejecting the defense arguments that individualized inquiries and allegedly “evasive” deposition testimony precluded certification.
The court reached a different result as to the parent, DuPont de Nemours. It set out the FLSA’s joint-employer standard, under which entities are joint employers when they “exert significant control over the same employees,” assessed through “the total employment situation and the economic realities of the work relationship” and the familiar factors of authority to hire and fire, authority over work rules and conditions of employment including pay, involvement in day-to-day supervision, and control of employment records. The court noted that even at the lenient conditional-certification stage a plaintiff must make a modest factual showing that a given entity is her employer and “cannot rely on allegations in her Complaint alone.” Here, DuPont de Nemours argued it was merely a holding company, Bower “d[id] not respond to this argument,” and the declarations supporting her motion identified DuPont Specialty Products — not the parent — as the employer. Finding the parent’s argument “unopposed” and unrebutted by any factual showing, the court declined to include DuPont de Nemours, limited the collective to employees of DuPont Specialty Products, and directed that references to the parent be removed from the notice.
Although this dispute arose in industrial chemical manufacturing rather than a franchised system, the joint-employer portion of the ruling is where its interest for branded and multi-entity organizations lies. On this record the court did not treat corporate ownership or a parent-subsidiary relationship as, by itself, enough to draw a parent into an FLSA collective; it required an entity-specific, evidence-based showing that the parent functioned as an employer, and declined to certify against the parent when that showing was absent — even under a standard the court itself called “extremely lenient.” At the same time, the court’s refusal to bar a successor collective reflects that, on the facts before it, a completed settlement did not foreclose a later action by employees who stayed out of it.
Looking Forward
For employers, franchisors, and multi-entity corporate families defending FLSA collective actions, the most useful feature of this decision is its insistence on defendant-specific proof of an employment relationship before a parent or affiliated entity can be swept into a collective. On this record, the court required a modest factual showing that DuPont de Nemours actually functioned as a joint employer and declined to certify against it when the plaintiff offered only complaint allegations and did not respond to the holding-company defense. Because the ruling applied Third Circuit joint-employer standards in a manufacturing setting and turned in part on the plaintiff’s failure to contest the point, it should be read cautiously, but it may inform how courts approach analogous efforts to name a franchisor, brand owner, or holding company alongside the operating entity that directly employs the workers. The persuasive, defense-side reading is that corporate relatedness or brand ownership should not, without more, establish joint-employer status even at a lenient threshold.
The practical, cautionary lesson for branded systems and corporate families is to be able to demonstrate a genuine separation between the operating entity that employs the workforce and any parent, holding company, franchisor, or affiliate that does not. Where an upstream entity confines itself to ownership and does not hire, fire, set pay, control schedules, or otherwise direct the workforce — and where the workers’ own declarations and records identify the operating company as the employer — that separation may help defeat an attempt to name the upstream entity, as it did here. Franchisors may draw the analogous point that documenting who actually controls the day-to-day employment relationship remains among the strongest protections against joint-employer exposure, recognizing that this court did not decide, and no franchisor should assume, that the analysis translates automatically from a manufacturing parent to a franchise brand.
Employers should also read the decision’s limits and not overread it in their favor. The court did conditionally certify against the operating employer under an admittedly lenient standard, declined to weigh the merits or the defendant’s individualized-inquiry and witness-credibility arguments at this stage, and rejected the contention that a prior settled collective in another forum barred a second FLSA collective. Because opting in is affirmative under the FLSA, the court held that employees who declined the earlier settlement retained their claims, and it noted that neither claim nor issue preclusion attaches to an FLSA settlement as to non-participants. Employers negotiating or approving FLSA collective settlements may wish to account for the possibility that non-opt-in employees can bring later actions, and to weigh notice quality and participation strategy accordingly, rather than assuming that one collective resolution ends the exposure.
Thomas O’Connell is a Partner at Buchalter LLP and Chair of the firm’s Franchise Practice Group. For questions about this article or media inquiries, you can contact Tom at toconnell@buchalter.com.
This article is based solely on the opinion of the Court in this matter. The author has not conducted any independent investigation into the facts. For the avoidance of doubt, each statement related to the law and facts in this article is drawn from the Court’s opinion in this case. It was drafted with the assistance of an artificial intelligence system. AI systems can make mistakes, including in describing legal authority. Readers should independently confirm any legal authority before relying on it.
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