In a proposed wage-hour class action pending before the Superior Court for Orange County, California, the Court denied the plaintiff's motion to compel names and contact information for all putative class members prior to a ruling on class certification. Bucking a trend by California courts to require employers to provide this information pre-certification, the Court agreed that unique privacy forms signed by the company's employees demonstrated that they had a "heightened expectation of privacy" in their contact information. The forms were developed by EBG's Los Angeles office. EBG anticipates that these forms will now be used by other employers, and other firms, to demonstrate that their employees also have a "heightened expectation of privacy" in their contact information.
Case Overview
In a wage-hour class action pending in the Superior Court for Orange County, California, the sole named plaintiff has alleged that she and all other hourly employees were denied overtime, as well as required meal and rest breaks. The employer has denied such allegations.
In pre-certification discovery, plaintiff's counsel sought the names and contact information for all putative class members. The company refused to provide such information, relying upon the employees' privacy rights under the California Constitution. In her motion to compel the information, the plaintiff relied upon recent California case law to support her contention that employees only have a limited "expectation of privacy" in the contact information that they provide to their employers.
Unlike employees who work for most other employers, however, the company's employees had signed forms indicating that they did not want the company to share their contact information with third parties, or only permitting the employer to do so if they were asked on a case-by-case basis. The forms, which were developed by EBG's Los Angeles office in response to recent California privacy rights decisions and ongoing concerns about identity theft, are set forth below. The instructions that the employees had given through these forms allowed the company to argue that, unlike other employers, its employees did not have just a limited expectation of privacy, but instead had a "heightened expectation of privacy."
On April 11, 2008, the Orange County Superior Court agreed with the company, relying upon the instructions by its employees in these forms to conclude that they in fact had heightened privacy rights. The Court not only denied the plaintiff's motion to compel the names and contact information, but it also denied the plaintiff's counsel's request that employees' names and contact information be shared with them unless an individual affirmatively "opted out" by indicating that he or she did not want that information shared. The Court reasoned that such a procedure would not adequately protect the employees' heightened privacy rights, concluding that the only employee contact information that the plaintiff would receive would be the information for employees who affirmatively "opted in" and indicated that they wanted their information shared with plaintiff.
The Form Developed by EBG
The following is the form developed by EBG:
RELEASE OF CONTACT INFORMATION
From time to time, ____________ (the "Company") may be asked to provide your contact information, including your home address and telephone number, to third parties. The Company may be asked to provide such information in the context of legal proceedings, including class action lawsuits.
We understand that many employees may consider this information to be private and may not want it released. Accordingly, please indicate whether you consent to the disclosure of your contact information by marking the appropriate box.
_____No, I do not consent to the Company's disclosure of my contact information to third parties.
_____Yes, I consent to the Company's disclosure of my contact information to third parties.
_____I would like to be asked on a case-by-case basis whether I consent to the disclosure of my contact information to a particular third party, and my contact information should only be provided if I affirmatively consent in writing.
Dated: ______________ _______________________
Signature
_______________________
Print Name
NOTE: Your response does not create a guarantee that the Company will not release your contact information as circumstances may require or warrant it. For instance, the Company may be required or compelled by law to disclose your contact information, regardless of whether you consent to such disclosure, or it may determine that it must do so should it determine that you are a witness in a lawsuit or should it be requested by law enforcement officers. In such an event, the Company cannot be held responsible for disclosing this information even if you have not consented to disclosure or asked for a case-by-case determination of disclosure.
What This Case Means for Employers
In California wage-hour class actions, whether or not an employer must provide contact information for putative class members prior to class certification has long been a heavily contested issue. If the employer must provide that information, plaintiff's counsel will have access to current and former employees who could assist in building a motion for class certification. If the plaintiff is unable to obtain this information, he may have difficulty gathering support for his case.
Not incidentally, there is a danger if an employer voluntarily produces such information. California's Constitution provides employees with a right to privacy. Employers have long relied upon that privacy right in arguing that they are forbidden from releasing the contact information for their employees. Indeed, were an employer to release an employee's contact information without his consent, the employer could be subject to suit from that employee alleging a violation of his Constitutional privacy right.
Recent California decisions have indicated that employees may only have a limited expectation of privacy when they provide their contact information to their employers, suggesting that such information must be produced in pre-certification discovery. Not only were such decisions adverse to the interests of employers, but in this time of rampant identity theft, EBG's attorneys questioned whether it was true that its clients' employees only had a limited expectation of privacy. The forms EBG's attorneys developed, and that clients like the defendant in the Orange County case implemented, confirmed that employees in fact have a heightened expectation of privacy in their contact information. That heightened expectation can prevent a plaintiff in a class action from unfettered access to the contact information for putative class members.
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If you have any questions regarding the decision, or if you would like a copy of the decision, please contact Michael S. Kun in the Firm's Los Angeles office at (310) 557-9501 or mkun@ebglaw.com.
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