The Ninth Circuit has made the geography of a wage-and-hour lawsuit nearly as important as the wage claim itself. In Harrington v. Cracker Barrel Old Country Store, Inc., the court held that the personal-jurisdiction principles from Bristol-Myers Squibb Co. v. Superior Court of California apply to collective actions under the Fair Labor Standards Act.
The decision means an employee generally cannot join an FLSA collective in a particular state merely because another employee has a similar claim there. When the court relies on specific personal jurisdiction, every opt-in plaintiff’s claim must have an adequate connection to the defendant’s conduct in the forum state.
That is a substantial restriction on multistate FLSA litigation within the Ninth Circuit. It does not eliminate nationwide collective actions, but it can determine where they may be filed, who may join them, and whether a seemingly national case becomes a collection of state-specific proceedings.
What Happened in Harrington v. Cracker Barrel?
Current and former Cracker Barrel employees filed the underlying action in the U.S. District Court for the District of Arizona. They alleged that the restaurant company violated the FLSA through its treatment of tipped workers, including its use of the tip credit and alleged off-the-clock work.
Under federal law, an employer may satisfy part of its minimum-wage obligation with a qualifying tip credit. However, the employer must follow detailed rules involving cash wages, notice, tip ownership, and the duties for which the credit is taken. The plaintiffs claimed that Cracker Barrel’s practices failed to satisfy those requirements. Cracker Barrel denied the allegations.
The employees requested preliminary certification of a collective covering servers who had worked in states where Cracker Barrel used a tip credit during the applicable period. The proposed notice group included people outside Arizona and employees who might have signed arbitration agreements.
The district court approved the preliminary collective and authorized broad notice. It concluded that the participation of an Arizona employee gave it personal jurisdiction over Cracker Barrel for the collective action, including similar claims belonging to employees whose work had no apparent connection to Arizona.
Cracker Barrel pursued an interlocutory appeal. The Ninth Circuit accepted the appeal to address three questions:
- Whether the district court used a permissible preliminary-certification procedure.
- Whether it had to resolve potential arbitration agreements before sending notice.
- Whether Bristol-Myers required a claim-specific jurisdictional inquiry for nonresident opt-in plaintiffs.
The employer did not win on every issue. It did, however, prevail on the question that most directly affected the geographic scope of the collective.
The Ninth Circuit’s Three-Part Decision
The Two-Step Certification Process Survived
The Ninth Circuit held that the district court did not abuse its discretion by using the familiar two-step process for managing an FLSA collective action.
At the first stage, courts make a preliminary assessment of whether the proposed participants appear to be similarly situated. If that initial showing is sufficient, the court may authorize notice advising eligible employees that they can opt into the case. After discovery produces a fuller record, the defendant may seek decertification by arguing that the participating employees are not actually similarly situated.
Cracker Barrel asked the court to replace that framework with a more demanding one-step approach associated with the Fifth Circuit’s decision in Swales v. KLLM Transport Services, LLC. The Ninth Circuit declined. Its earlier decision in Campbell v. City of Los Angeles had already approved the two-step procedure, and the panel remained bound by that precedent.
The court did not decide precisely how much evidence a plaintiff must produce at the preliminary stage. Its ruling concerned the permissibility of the procedural framework, not every evidentiary detail hiding inside it. Legal procedure loves leaving a few drawers unopened for the next case.
Disputed Arbitration Questions Could Wait
The Ninth Circuit also refused to impose an inflexible rule requiring trial courts to decide every prospective participant’s arbitration status before notice is distributed.
If it is undisputed that an employee is covered by a valid agreement requiring individual arbitration, sending that employee notice of a court-based collective action would be an abuse of discretion. That person cannot ordinarily join litigation concerning a claim that must be arbitrated.
The situation changes when the existence, validity, scope, or enforceability of the agreement remains disputed. Those questions may require individualized evidence about electronic acceptance, access to training systems, contract versions, signatures, or other facts. A court may postpone the final arbitrability decision until employees opt in and the relevant evidence becomes available.
In Harrington, unresolved factual questions remained, and the approved notice warned recipients that employees subject to arbitration could not participate. The Ninth Circuit therefore found no abuse of discretion on this issue.
Bristol-Myers Applies to FLSA Collectives
The plaintiffs’ major loss came on personal jurisdiction. The Ninth Circuit held that when jurisdiction is specific rather than general, the court must determine whether each opt-in plaintiff’s claim is sufficiently connected to the defendant’s activities in the forum state.
The district court had assumed that one Arizona-connected employee was enough to establish jurisdiction for the entire collective. The Ninth Circuit rejected that theory, vacated the preliminary-certification order, and remanded the matter for reconsideration.
Why Bristol-Myers Matters in an Employment Case
Bristol-Myers Squibb was not a wage case. It was a mass-tort action involving hundreds of people who alleged injuries from the prescription drug Plavix. Most of the plaintiffs were not California residents, and their claims did not arise from conduct or injuries occurring in California.
The U.S. Supreme Court held that a California court could not exercise specific personal jurisdiction over those nonresidents’ claims. Similar allegations by California residents did not supply the missing connection. Personal jurisdiction requires a relationship among the defendant, the forum, and the particular claims being litigated.
The original decision concerned a state court and Fourteenth Amendment due process. Harrington, by contrast, involved a federal court hearing claims created by federal law. That distinction supplied the employees’ central argument: a federal court should be able to consider the defendant’s contacts with the United States as a whole.
The Ninth Circuit disagreed because the FLSA does not authorize nationwide service of process. Federal Rule of Civil Procedure 4(k)(1)(A) therefore generally ties the federal court’s jurisdiction to that of a court in the state where the federal court sits. Arizona’s long-arm rule reaches the constitutional limit, bringing Fourteenth Amendment restrictionsand the reasoning of Bristol-Myersback into the analysis.
Had Congress included nationwide service of process in the FLSA, a national-contacts analysis might have followed. Congress did not do so, and courts are not allowed to install statutory upgrades simply because the existing version feels inconvenient.
FLSA Collective Actions Are Not Rule 23 Class Actions
The Ninth Circuit’s reasoning also depended on the distinction between an FLSA collective action and a class action under Federal Rule of Civil Procedure 23.
Rule 23 generally treats a certified class as a representative action. Qualifying members are included unless they opt out, and absent members ordinarily do not become conventional named parties.
Section 216(b) of the FLSA works differently. An employee must affirmatively consent in writing and file that consent with the court. Once the employee opts in, that person becomes a party plaintiff asserting an individual claim alongside other similarly situated employees.
Because an FLSA collective is an aggregation of individual claims, the Ninth Circuit considered it analogous to the mass action examined in Bristol-Myers. Each opt-in employee retains party status; consequently, jurisdiction must exist for each person’s claim.
The court did not decide whether the same analysis applies to Rule 23 class actions. Employers should therefore resist treating Harrington as an automatic answer to every class-action jurisdiction question. FLSA collective actions and Rule 23 classes may travel together in wage litigation, but they are not procedural twins.
The Federal Circuit Split
The Ninth Circuit joined the Third, Sixth, Seventh, and Eighth Circuits in extending Bristol-Myers to FLSA collective actions. Their decisions include Fischer v. Federal Express Corp., Canaday v. Anthem Companies, Inc., Vanegas v. Signet Builders, Inc., and Vallone v. CJS Solutions Group, LLC.
The First Circuit took the opposing position in Waters v. Day & Zimmermann NPS, Inc.. It reasoned that Rule 4(k)(1)(A) governs the service that establishes jurisdiction over the defendant but does not impose the same state-based territorial restriction on opt-in claims added after valid service.
The Ninth Circuit found that reasoning difficult to reconcile with the rule that personal jurisdiction must exist for every claim. In its view, allowing one properly served plaintiff to support unrelated claims from across the country would create something resembling general jurisdiction without satisfying the requirements for general jurisdiction.
The Supreme Court had an opportunity to address the conflict after both sides sought review of different parts of Harrington. On February 23, 2026, it denied both petitions. A denial of certiorari is not an endorsement of the Ninth Circuit’s reasoning, but it leaves the decision intact as controlling law in the circuit.
Does Harrington Eliminate Nationwide FLSA Collectives?
No. The decision limits where a nationwide action based on specific jurisdiction can proceed; it does not prohibit nationwide collectives as a category.
General Jurisdiction Remains Available
A corporation is ordinarily subject to general personal jurisdiction in its state of incorporation and the state containing its principal place of business. A court with general jurisdiction may hear claims unrelated to the company’s conduct in that state.
Cracker Barrel was incorporated and headquartered in Tennessee, not Arizona. It was therefore not subject to general jurisdiction in Arizona merely because it operated restaurants there. A nationwide collective filed in a forum where the employer is legally “at home” presents a different jurisdictional situation.
Forum-Connected Employees Can Still Proceed Together
Employees whose claims arise from work performed in the forum state can generally pursue an FLSA collective there, assuming the other statutory and procedural requirements are satisfied. The decision therefore favors state-specific collectives when the employer is not at home in the chosen forum.
Consent and Waiver Still Matter
Personal jurisdiction is a waivable defense. An employer that does not preserve the objection may lose it. Courts must evaluate the pleadings, procedural history, and defense conduct rather than assume Harrington automatically removes nonresident employees.
Practical Consequences for Employers and Employees
What Employers Should Review
- Corporate home states: Identify where each relevant entity is incorporated and maintains its principal place of business.
- Jurisdictional defenses: Raise personal-jurisdiction objections promptly because the defense can be waived.
- State-by-state employee data: Maintain reliable records showing where employees worked and which policies governed them.
- Arbitration records: Preserve agreement versions, acceptance logs, training records, and policy acknowledgments.
- Tip-credit compliance: Audit cash wages, employee notices, tip pools, side-work practices, and timekeeping procedures.
Harrington offers a powerful procedural defense, but it does not excuse an underlying pay violation. Winning an argument about Arizona will not repair defective payroll practices in Nevada, California, or anywhere else.
What Employees and Their Counsel Should Consider
- Forum selection: Filing where the employer is subject to general jurisdiction may preserve the possibility of a nationwide collective.
- State-specific cases: Multiple regional or state collectives may be necessary when a home-state forum is impractical.
- Limitations periods: An opt-in employee’s FLSA limitations period generally continues to run until written consent is filed.
- Entity structure: The proper defendant may not be the brand name displayed above the workplace door.
- Parallel claims: State wage laws and Rule 23 claims require separate jurisdictional and certification analyses.
Practice-Based Experiences: How Harrington Changes Real Cases
The following composite scenarios illustrate recurring strategic issues in multistate wage litigation. They are not descriptions of the actual parties’ confidential experiences, but they show how the decision can affect litigation outside a law-school hypothetical.
Experience One: The Convenient Forum That Becomes Inconvenient
Suppose a regional restaurant employee files in Oregon and seeks to notify servers in Oregon, Washington, Nevada, and Arizona. The employer is incorporated in Delaware and headquartered in Texas. The same electronic tip-credit policy applies everywhere, so the proposed collective initially looks efficient.
After Harrington, uniformity alone does not establish specific jurisdiction over claims arising outside Oregon. The attorney must ask where the challenged wage decisions were implemented, where each employee worked, and whether any forum-related conduct generated the out-of-state claims. If those connections are missing, the Oregon case may shrink to Oregon workers. The practical lesson is simple: analyze jurisdiction before investing heavily in a nationwide notice strategy.
Experience Two: A Home-State Filing Preserves National Reach
Consider a logistics company incorporated and headquartered in California with hourly employees across the country. Workers allege that a centralized timekeeping system automatically deducted meal periods even when employees worked through them.
A California federal court may have general jurisdiction over the company, meaning every opt-in claim does not need to arise from California conduct. The plaintiffs still must establish that the workers are similarly situated, overcome any arbitration defenses, and prove an FLSA violation. Nevertheless, forum selection removes the specific-jurisdiction problem that defeated nationwide notice in Harrington. The filing location is not decorative text at the top of the complaint; it can define the available collective.
Experience Three: Arbitration Records Are Not as Tidy as Expected
An employer may insist that nearly every potential participant clicked “I agree” during online onboarding. Discovery then reveals that several locations used different software, some records lack timestamps, and one agreement version never reached workers hired during a platform migration.
Harrington allows a district court to defer disputed arbitrability questions until employees opt in. The employer cannot necessarily block notice with a spreadsheet labeled “arbitration,” while employees cannot assume that a later agreement challenge will succeed. Both sides benefit from examining the actual records early. Electronic contracts have a charming habit of looking perfect until someone asks for the audit trail.
Experience Four: Fragmentation Creates a Timing Problem
Imagine that an Arizona collective loses its nonresident component after a jurisdictional challenge. Employees in other states must decide whether to file new cases, join an action where the employer is at home, or pursue their claims individually.
That decision is urgent because an FLSA claim’s limitations period generally does not stop for a particular employee merely because someone else filed a collective complaint. The employee typically must file written consent to opt in. If jurisdictional litigation consumes months, potential claims may continue aging in the background like forgotten leftoversexcept these leftovers can become legally unrecoverable.
Experience Five: One Policy Does Not Always Mean One Lawsuit
A nationwide employer might use a single written policy while local managers apply it differently. Some locations may require pre-shift work; others may alter time records or assign excessive non-tipped duties. Even in a forum with general jurisdiction, these factual differences can undermine the similarly situated requirement at the second certification stage.
Conversely, a strongly centralized practice can support collective treatment but will not cure a missing jurisdictional connection in a specific-jurisdiction forum. Lawyers must keep the questions separate: jurisdiction asks whether the court has authority over each claim, while collective certification asks whether the employees should litigate together. Passing one test does not provide extra credit on the other.
These experiences demonstrate the broader effect of Harrington: successful FLSA litigation now requires an early map of corporate identity, employee locations, forum contacts, limitations deadlines, arbitration records, and challenged policies. Waiting until notice briefing to build that map may be an expensive way to discover that the proposed collective took a wrong turn several states ago.
Conclusion
Harrington v. Cracker Barrel confirms that Bristol-Myers applies to FLSA collective actions in the Ninth Circuit when jurisdiction rests on specific personal jurisdiction. Each opt-in plaintiff’s claim must be connected to the defendant’s activities in the forum state; one resident employee cannot provide jurisdiction for unrelated claims from around the country.
At the same time, the court preserved the Ninth Circuit’s two-step certification process and allowed trial judges to defer genuinely disputed arbitration questions. The result is a mixed but highly consequential decision: notice procedure remains flexible, while the geographic reach of many collective actions becomes narrower.
Employers should view the ruling as a reason to examine jurisdictional defenses and improve wage records. Employees should treat forum selection and filing deadlines as front-end strategy, not post-filing housekeeping. With Supreme Court review denied in February 2026, Harrington remains the controlling rule throughout the Ninth Circuit unless Congress, the Supreme Court, or a later en banc court changes the landscape.
