Labor & Employment Law Daily Wrap Up, WAGE-HOUR—CLASS ACTIONS—D. Del.: DuPont workers may pursue second overtime collective, (Jun 18, 2026)

By George Basharis, J.D.

Employees who declined an earlier Ohio wage settlement may pursue unpaid overtime claims through a separate collective action.

Employees who chose not to participate in an earlier wage-and-hour settlement involving DuPont’s production facilities may still pursue a separate collective action seeking unpaid overtime compensation, a federal district court in Delaware has ruled, concluding that the FLSA does not prevent workers from bringing a second collective action based on the same alleged pay practices. The district court conditionally certified a proposed collective of current and former hourly, non-exempt production employees of DuPont Specialty Products USA, LLC who allegedly performed unpaid pre-shift and post-shift work and did not participate in an earlier Ohio state-court settlement. The ruling rejected arguments that the new case should be barred as duplicative of the earlier proceeding, finding no statutory basis for preventing workers who opted out of a prior settlement from seeking their own recovery. At the same time, the court refused to certify claims against DuPont de Nemours, Inc., holding that the employees failed to make the modest factual showing necessary at the conditional-certification stage to establish that the parent company acted as a joint employer (Bower v. DuPont de Nemours, Inc., No. 25-453-MAK (D. Del. June 17, 2026)).

Overtime claims. The case was brought by an hourly machine operator who worked at a DuPont facility in Ohio from January 2021 until April 2025. According to the complaint, hourly production employees were required to perform various activities before and after their scheduled shifts without compensation. The employees allege they were required to wear protective clothing and equipment, attend shift-change meetings before scheduled start times, complete ongoing tasks after their shifts ended, remove protective gear, and participate in additional shift-change meetings. They contend that the uncompensated work resulted in unpaid overtime when their total hours exceeded 40 hours in a workweek.

Earlier settlement. Similar overtime claims previously were pursued by other hourly production employees against DuPont and ultimately resolved through a settlement in Ohio. The employee who filed the Delaware action did not participate in that settlement, allegedly because she became skeptical of the outcome after receiving notices reflecting recovery amounts that she believed significantly undervalued her claims. Several other employees submitted similar declarations expressing dissatisfaction with the settlement process, while one employee stated that he never received notice of the prior collective action.

Duplicate claims. DuPont argued that the proposed collective substantially overlapped with the earlier settlement group and urged the court to deny certification on that basis. The court rejected the argument, emphasizing that the FLSA’s opt-in structure allows employees to decide whether to participate in a collective action and does not prohibit later litigation by employees who refuse to join.

The court reasoned that employees would gain little from having the right to opt out of a collective action if exercising that choice prevented them from later pursuing their own claims. It concluded that Congress did not create any statutory bar to successive collective actions and that the record contained no evidence of abuse, gamesmanship, or efforts to create duplicative litigation for improper purposes.

The court also found that allowing the case to proceed could promote efficiency by providing a single forum for employees who refused to participate in the earlier settlement rather than forcing them to file separate individual lawsuits. Although some federal courts have denied certification of overlapping collective actions in certain circumstances, the court found that the facts in this case supported a different result. It pointed to evidence suggesting that some employees declined to participate in the Ohio settlement because of concerns about the adequacy of the outcome and the representation provided in that proceeding. Those circumstances, the court said, supported allowing the new collective claims to move forward. The court also rejected arguments that the Ohio settlement should have preclusive effect on employees who did not opt into that action.

Joint employer. DuPont achieved a partial victory on whether its parent company should remain in the collective action. DuPont de Nemours argued that it functioned as a holding company and did not employ the employees at issue, while the employees alleged that DuPont de Nemours and DuPont Specialty Products acted as joint employers.

The court noted that employees may have more than one employer under the FLSA, but employees seeking collective treatment must make at least a modest factual showing supporting the alleged employment relationship. Relevant considerations include authority over hiring and firing, work rules, compensation, supervision, and employee records.

The employees failed to meet that burden. Although the complaint alleged a joint-employer relationship, the machine operator and other hourly employees submitted declarations that identified DuPont Specialty Products as their employer. The court also noted that the employees did not meaningfully respond to DuPont de Nemours’ arguments or offer evidence showing that the parent company exercised control over their employment. Because allegations alone are insufficient at the conditional-certification stage, the court concluded that the employees failed to establish a factual basis for treating DuPont de Nemours as a joint employer. As a result, the collective was limited to employees of DuPont Specialty Products.

Modest showing met. The court nevertheless found that the employees satisfied the lenient standard for conditional certification against DuPont Specialty Products. At the first stage of the FLSA certification process, employees need only make a modest factual showing that they and other proposed collective members were affected by a common policy or practice. The court emphasized that the inquiry does not involve weighing evidence or resolving the merits of the underlying claims.

The machine operator and several other employees submitted declarations stating that DuPont Specialty Products maintained a policy of not paying hourly production employees for required work performed outside their scheduled shifts. The court found those declarations sufficient to establish the necessary factual nexus between the named employee and the proposed collective.

DuPont argued that individualized inquiries would ultimately be required to determine liability and that the machine operator’s deposition testimony was evasive. The court did not consider those arguments at the conditional-certification stage, finding that they concerned the merits of the claims rather than the threshold question of whether notice should be sent to potential collective members.

Notice procedures. The ruling also approved notice procedures for potential collective members. Employees may receive notice by mail, email and text message, and a reminder notice may be sent during the opt-in period despite DuPont’s objection to text-message notice. The court approved the proposed notice and consent forms with modifications requiring removal of references to DuPont de Nemours and shortening the opt-in period to 60 days from the date of the order. The court also directed DuPont Specialty Products to provide the names, employment dates, work locations, job titles, mailing addresses, email addresses and cellphone numbers of potential collective members.

The case is No. 25-453-MAK.

Judge: Kearney, M.

Attorneys: Raeann Warner (Collins Price Warner Woloshin) for Breana A. Bower, Jadin Dickerson, Logan Snyder, Zach Northup and Sara Malone. Lauren Elizabeth Moak Russell (Potter Anderson & Corroon) for DuPont de Nemours, Inc. and DuPont Specialty Products USA, LLC.

Companies: DuPont de Nemours, Inc.; DuPont Specialty Products USA, LLC

Cases: WageHour ClassActions Overtime Procedure CoverageLiability DelawareNews