An employer can interview employees who are potential plaintiffs in a wage-and-hour class action that has not yet been certified, a federal judge says.
A limit on communications is not warranted because employees were not threatened or intimidated and defense counsel did not willfully conceal information from them, U.S. Magistrate Judge Joel Schneider held Wednesday.
The plaintiff in Bobryk v. Durand Glass Manufacturing claimed that interviews of 20 Durand Glass employees in Millville were designed to get signed declarations binding them to facts adverse to their interests.
But Schneider, in Camden, held the allegations that the defendant’s actions were misleading were unfounded. And he said that a list of disclosures the defendant made to the interview subjects should allay plaintiff concerns.
The suit alleges that workers were paid for eight-hour days but had to spend 30 to 45 minutes a day on uncompensated pre- and post-shift activities, such as conferring with workers from other shifts and changing in and out of protective equipment.
The company stopped paying workers for those activities in 2011, according to the suit, filed by electrical mechanic Cindy Bobryk.
She claimed that violated New Jersey wage law.
She also said much of the uncompensated work is in excess of 40 hours a week, making the company’s conduct a violation of the federal Fair Labor Standards Act, too.
The interviews were produced as declarations during discovery.
The plaintiff claimed they were improper because the employees were not informed of the name of plaintiff counsel, the plaintiff’s theory of the case, their legal rights and the existence of an overtime class action.
The plaintiff also characterized the interviews as unauthorized, ex parte communications, violating Rule 23(d) and RPC 4.2.
Durand says that the suit overstates the extent of the pre- and post-shift duties and that it is not required to pay for them.
It maintained that it conducted the interviews to demonstrate that the employees’ responsibilities were significantly different from Bobryk’s and that they did not engage in uncompensated activities.
The company argued that its lawyers read employees a script saying Bobryk feels she should be able to recover wages on behalf of all hourly employees.
The script also said the company’s lawyers were speaking with employees to show that not all have the same experiences as Bobryk.
Schneider said plaintiff counsel erroneously characterized the interviews as ex parte, since putative class members are not represented parties, absent a decision to opt in.
He said no rule forbids a defendant from speaking to putative class members, though courts have discretion to regulate such interactions.
He cited Gulf Oil Co. v. Bernard, in which the Supreme Court said limits on communications between parties should be based on specific findings that balance “the need for a limitation and the potential interference with the rights of the parties.”
“The record does not show any misconduct by defense counsel” or that defense counsel deterred putative class members from participating in the case, Schneider said.
The plaintiff cited four cases in which contacts with putative class members were found improper, but Schneider found three concerned misleading tactics, which were not at issue in the current case.
In the fourth case, a restriction imposed in the absence of misleading communications and coercion ran counter to Gulf Oil, Schneider said.
Bobryk’s lawyer, Justin Swidler of Swartz Swidler in Cherry Hill, and Durand’s lawyer, Thomas Barton of Drinker, Biddle & Reath in Philadelphia, did not return calls.