In 1981, the Supreme Court issued general guidance as to what an employer can say to “putative class members” In doing so, the Court explained that the judiciary has the power to control communications See generally Gulf Oil v. Bernard, 452 U.S. 89 (1981) (holding a district court has both the “duty and broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties,” including the duty and authority to enter orders limiting communications by class counsel for the plaintiff to members of the class). Since then, counsel for all parties in a class action have wrestled with the strategic and ethical implications of communicating with an individual who is not formally represented by either side (Note: this issue is further confounded by the collective action “opt-in” nature of the FLSA – an issue for another day).
This communication process is made all the more difficult in the employment context, where management must interact with putative class members on a daily basis – because they still work for you! One recent opinion addressing communications from both plaintiff and defense counsel in a putative class action is Clincy v. Galardi S. Enters., 2010 U.S. Dist. LEXIS 22796 (N.D. Ga. March 12, 2010). In Clincy, a putative collective wage and hour action filed by several dancers at Club Onyx, an adult entertainment night club in Atlanta, counsel for plaintiffs sent a communication about the lawsuit to the homes of dancers who had not joined the lawsuit. In response, counsel for defendants circulated a memo to potential class members, correcting what they perceived to be misleading information contained in plaintiffs’ letter. Id. at * 8-11.
After reviewing these two submissions (and in light of already-substantiated allegations of retaliatory acts by the employer and other Defendants – some of which were partially captured on audiotape by the Plaintiffs), the Court cautioned Defendants strongly against any further retaliation or coercive behavior. Id. at * 10-11. Acknowledging Defendants’ need to communicate with putative participants in order to defend the case, the Court permitted future communication with those individuals, but required that any further written communication contain an “introductory paragraph” with specified language in a font “that is bold and larger than the text contained in the body of the communication”, reading:
This communication represents the opinion of the management of Club Onyx. It is unlawful for Club Onyx, its management, or any other Defendant, to retaliate against employees who choose to participate in this case or assist Plaintiffs’ counsel in this case.
Interaction with putative class members is one of the most difficult and subtle aspects of class action defense. It is important to consider all of the ramifications of any proposed communication, even when the subject matter does not directly relate to the lawsuit, before implementing a communication strategy. Employers do not want to put themselves in a position whereby by court mandate the credibility of their communication is expressly circumscribed.