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October 2013

Employers Can Interview Employees Who Are Potential Class Members

The U.S. District Court for the District of New Jersey recently issued a helpful decision for employers faced with potential class or collective actions for unpaid overtime and wages.  In Bobryk v. Durand Glass Manufacturing, the court ruled that employers are not prohibited from interviewing employees, who could be class members, to support an employer’s defense. 

Cindy Bobryk sued her employer, Durand, on behalf of herself and as collective/class actions seeking unpaid overtime and wages pursuant to the Fair Labor Standards Act; New Jersey’s Wage and Hour Law; and New Jersey’s Wage Payment Law.   She alleged that Durand required its employees to work beyond their scheduled shift times, without compensating them for overtime wages earned during mandatory pre- and post-shift activities.  As part of their objection to class status, Durand produced declarations from 20 employees to demonstrate that they had different responsibilities than Bobryk and that they did not engage in uncompensated activities.

In response, Bobryk filed a motion to bar Durand from interviewing members of their putative class comprised of Durand’s employees and from making use of any of the declarations obtained during the course of these communications.  To support her motion, Bobryk’s counsel argued that Durand interviewed its employees to obtain declarations that would bind them to facts adverse to their interests. 

In its Oct. 9 ruling on the motion, the court held that limiting Durand’s communications with its employees was not warranted because the employees were not threatened or intimidated, and Durand’s counsel did not willfully conceal any information from the interviewees.  The court rejected Bobryk’s characterization that the interviews were ex parte, since putative class members are not represented parties until they decide to opt-in to the class action.  Moreover, the record did not show any misconduct by defense counsel, or that putative class members were deterred from participating in the case.  The court stated that “until putative class members affirmatively opt-in to benefit from a collective action, or until a Rule 23 class is certified and the opt-out period expires, defense counsel is not completely barred from communicating with putative class members.” 

This holding is significant because it enables an employer’s legal representatives to interview employees who could be plaintiffs in a wage-and-hour class action that has yet to be certified.  However, caution should be taken in conducting the interviews to avoid any argument that the interviewees are being misled, coerced, or deterred from participating as class members.   

Employment Law

Michael S. Hanan

Employment Law