May 7, 2026
More workers will need to limit putative wage and hour collective actions to a single state or seek to bring a wider action where their employer is based or primarily does business, after the Second Circuit joined others in barring out-of-state workers from joining collective actions, attorneys said.
The panel’s ruling on Monday in Provencher v. Bimbo Bakeries USA Inc. that the lower court lacked personal jurisdiction over out-of-state workers’ claims was the latest appellate decision on the issue.
. . .
“The issue is increasingly settled,” said Rebecca Ojserkis of worker-side firm Cohen Milstein Sellers & Toll PLLC. “Where those collective actions are brought by workers within a particular state, this doesn’t really change anything.”
But for proposed collective actions that would include workers from multiple states, as in Bimbo Bakeries, or nationwide, “those cases are going to have to be brought where the employer is either headquartered or has their principal place of business,” she said.
The Second Circuit panel relied on the U.S. Supreme Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court of California. The justices held in that case that individuals outside the state where the case originated lacked a connection to the state, so they could not join a class action there.
Moving forward, workers are better off filing broader putative collective actions where the business makes its home, Ojserkis said.
. . .
As the issue becomes settled in more circuits, new questions could arise. One could be what happens when workers are suing joint employers that are located in different states, Ojserkis said.
“That requires plaintiffs to file two separate actions, which is completely inefficient for the courts and for the parties, and perhaps will lead to defendants coming around in those situations and saying, let’s consolidate,” she said.
A similar wrinkle could be what happens when employers have multiple headquarters or primary places of business.
. . .
Yet another upcoming issue could be more states enacting “consent by registration” laws that require out-of-state businesses that register in the state to agree to personal jurisdiction.
The U.S. Supreme Court upheld the legality of such legislation in Mallory v. Norfolk Southern Railway Co. in 2023, after the Pennsylvania justices struck down such a law in that state. Kansas and Georgia also have explicit “consent by registration” laws, and some others have statutes that state courts have interpreted as establishing consent.
Ojserkis said, “We might see more of those kinds of statutes popping up, and there might be more challenges to those statutes by employers about whether or not those statutes hold water.”
Read 2nd Circ. Ruling Will Restrict Where Workers Bring Collectives – Law360 Employment Authority.