Kellogg Company, Keebler Foods Company, and Other Associated Companies – Smith v. Kellogg

On July 13, 2017, Getman, Sweeney & Dunn filed a federal lawsuit in Nevada to recover unpaid overtime wages for employees of Kellogg Company (along with Kellogg Sales Company) throughout the country. The case challenges Kellogg’s failure to pay Retail Sales Representatives (“RSRs”), Territory Managers (“TMs”), Retail Sales Managers (“RSMs”) and Kellogg Sales Representatives (“KSRs”) time and one half premium pay for all hours worked over 40 in a work week. Plaintiffs seek to recover their unpaid overtime wages, “liquidated” or double damages, and their costs and fees in bringing the litigation. Click here to review the complaint that has been filed in court.

Anyone who worked for Kellogg as an RSR, TM, RSM, and/or KSR at any time during the prior three years and has not already joined the Thomas v. Kellogg case filed in Washington State is eligible to join the case and bring their claims under federal law. To join the case, you must fill out and return a Consent to Sue form to Getman, Sweeney, & Dunn.

This case is similar to—but separate from—the Thomas v. Kellogg case currently pending in the Western District of Washington. The period to join that case has ended. This newly filed case allows people who did not join the original case to bring claims. If you have joined the original case, your claims have already been brought under federal law and you are not eligible to join this case. Your claims are not impacted by the filing of this case.

The complaint is brought as a “collective action” under the federal Fair Labor Standards Act (FLSA). The case has been assigned to U.S. District Judge Gordon and U.S. Magistrate Judge Foley. The law firm of Gabroy Law Offices will also be joining Getman, Sweeney & Dunn in representing Plaintiffs in this case.

Status Reports

Kellogg Case Sent to Arbitration for Arbitrator to Determine the Arbitrability – Posted March 30, 2018

On February 15th, the Court held that an arbitrator, rather than a judge, will now decide if the Named Plaintiff’s claims need to be heard in arbitration or by the court. Arbitration is a way of privately resolving disputes outside of the court system.

In addition, the Court ruled that the case in Nevada will be stayed (put on hold) pending the arbitrator’s decision. As a result, Plaintiffs’ motion to conditionally certify a Fair Labor Standards Act collective action and issue notice was denied without prejudice. Depending on the arbitrator’s decision, we may be able to re-file the motion. TMs, RSRs, KSRs and RSMs may still protect their overtime claims and join the case by filing a Consent to Sue form.


Over 50 RSRs, KSRs, TMs, and RSMs have joined the case!

In order to allow others to learn about the case and preserve their unpaid overtime claims by filing a Consent to Sue form, we asked the Judge for permission to conditionally certify the class to send notice to RSRs, KSRs, TMs, and RSMs who worked for Kellogg within the last three years. However, because the Judge has stayed (i.e. put on hold) Kellogg’s response to our request, if RSRs, KSRs, TMs, and RSMs want to protect their overtime claims, it is important they promptly file a Consent to Sue form. Otherwise, they risk losing unpaid overtime wages to the statute of limitations.

The Judge stayed Kellogg’s response because he wants to determine the outcome of another motion: Kellogg’s motion to compel arbitration. In that motion, Kellogg asked the Judge to dismiss the case and send the Named Plaintiff to arbitration because he signed an agreement that contained an arbitration provision. We opposed Kellogg’s motion and argued that the arbitration provision is unenforceable.

We now await the Judge’s decision on Kellogg’s motion to compel arbitration. We will update you when we are notified of that decision.


Despite settling the Thomas v. Kellogg case in the Western District of Washington, Kellogg continues to litigate this case. That means that this case remains open to Territory Managers, RSR-DSDs, RSMs, KSRs and related titles in the Snack Division who worked in the DSD Model after July 14, 2014, and were paid on a salary basis without overtime compensation for working more than 40 hours in a workweek. You can join this case even if you signed a Severance Agreement or a Continued Employment/Incentive Agreement because Kellogg has acknowledged that those agreements do not apply to claims under the Fair Labor Standards Act like the claims raised in this case. To join the case, you must fill out and return a Consent to Sue form to Getman, Sweeney & Dunn. If you have any questions, call us at 845-255-9370. The call is free and confidential.

Answers to Common Questions – Posted 7/31/17

Do I have to pay to join the case?

No. There are no up-front charges or costs to joining this case. The attorneys are handling this case on a contingent basis and will only be paid a fee when we win through a settlement or final judgment. And, under both the federal and state wage-and-hour law, when plaintiffs win an overtime case, defendants must pay the plaintiffs’ costs and attorneys’ fees.

Which employees can be part of this lawsuit?

All Kellogg Sales Representatives, Retail Sales Representatives, Territory Managers, and Retail Sales Managers who have worked for Kellogg at any time during the prior three years in a non-supervisory capacity, are eligible to join the case and bring their claims under federal law. To join the case, you must fill out and return a Consent to Sue to counsel. Click here for the Consent to Sue.

What work locations are covered by this lawsuit?

The claims in this lawsuit cover the entire United States. If you worked for Kellogg anywhere in the country, you may join this case.

What claims are covered in this case?

The lawsuit at present covers claims for overtime pay under the federal Fair Labor Standards Act (“FLSA”). The specific violations claimed are that Kellogg did not pay the class members overtime wages even though the law requires it to do so.

How do I join the case?

You can affirmatively join the case by submitting a completed Consent to Sue to us. Once we receive your Consent to Sue, we will file it with the court and you will have officially joined the lawsuit. Click here for the Consent to Sue.

What damages are sought?

Damages sought under the FLSA include back overtime pay, an equal amount of liquidated damages, attorneys’ fees, and any costs of litigating the case.

How far back can claims be made?

Under the FLSA, you are entitled to make claims for the period extending back three years (two years if the employer is ultimately found not to have acted willfully) from the date your Consent to Sue Form is filed in Court. This three (or two) year period is called the “statute of limitation.”

Can I wait to file my Consent to Sue form?

You are not part of the case until your Consent to Sue form. is returned to the plaintiffs’ attorneys and then filed with the Court. If you delay in filing the Consent to Sue, part or all of your FLSA claims may be barred by the “statute of limitation.”

Can Kellogg fire me or take action against me for joining the case?

The law prohibits retaliation for joining an overtime lawsuit. If any employee suffered retaliation, Kellogg could be liable for at least double the injury caused to the employee, and possibly additional damages such as punitive damages. Notify us immediately if you think any retaliation has occurred. Retaliation is rare in overtime cases, because an employer can suffer such serious penalties.

Can Kellogg contact me about this case?

Employers are generally permitted to contact unrepresented employees about a case, that is, until they have filed a consent to sue. Nevertheless, employers and their attorneys make it a regular practice to speak with current employees. Even though they are not permitted to do so, employers and their counsel have in many cases tried to discourage employees from joining wage hour cases. And they have tried to get employees to make a statement that can later harm their ability to join a lawsuit or otherwise interfere with their claims. Here are the rules for employer attorney contact with employees about a case: First, employers’ attorneys should advise employees that they should secure their own counsel before speaking with the attorney. Attorneys for the employer may not give employees legal advice. Employers’ attorneys are not permitted to give false or misleading information about a case. They are required to inform an employee that they represent the company and that the employee is not required to give a statement. Statements that employees give to employers or their lawyers are generally sought to defend the company against the suit seeking back wages the company may owe its employees, including wages owed to the employee giving the statement. Getman, Sweeney & Dunn strongly believes that employees who may have back wage claims should not give statements to an employer or its attorneys without receiving legal advice first. If you are asked to provide information or give a statement, you can contact Getman, Sweeney & Dunn immediately. The call is free and confidential.

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