The Fair Labor Standards Act (FLSA) provides that a lawsuit for overtime violations may be maintained by one or more employees and by other employees similarly situated. The federal district court for the Southern District of Florida recently granted conditional certification of a collective action for a group of employees who provide assembly services for retail businesses in Florida such as Home Depot, Wal-Mart and Lowe’s. The employees who filed the suit asked for permission for their lawyers to contact current and former employees directly with a message about the lawsuit and the court approved the lawyer’s e-mail communication.
Justin Cooper was an “assembler” for East Coast Assemblers, Inc. (“East Coast”). East Coast hired employees to assemble retail products for “big box” stores in Florida. Cooper claimed he had not been paid wages for overtime work and he sought pack wages, damages and attorneys’ fees for his claims under the FLSA.
Since East Coast operated in 22 states with many employees, Cooper asked the court for conditional class certification of his claims. When a conditional class certification is requested in Florida, the courts follow a two-tiered procedure in deciding whether employees are “similarly situated” for purposes of class certification (called a collective action under the FLSA since each member must agree to join the class). First, the court satisfies itself that there are other employees who desire to be included in the suit. Later in the case when discovery is completed, the Court will make the second and final decision as to whether it will certify a group of employees for the litigation.
Certification of a Class
The court first looked at the suit to decide if Cooper and the other employees who had asked to join in the suit were similarly situated to the group of employees they were asking to represent. Then the Court determined whether there was any evidence to show that other current or former employees wanted to join the suit.
Cooper filed with the court simple statements from three other assemblers that they wanted to join in the lawsuit. Daryl Lane and Ramona McDonald, both former assemblers, said in their statements that East Coast employed assemblers all over the United States and the assemblers performed nearly identical job duties and regularly worked over forty (40) hours in a week and were not paid for all of their overtime. The statements also referred to a U.S. Department of Labor Investigation that supported their claim that East Coast failed to pay assemblers for overtime work.
East Coast opposed the certification of a collective action and argued that the employees had obtained the other “opt-in” employees by improper communications and solicitations of East Coast employees. The court did not buy this argument, however, and approved a notification about the suit to current and former employees to find out if those employees wanted to join in the suit. The court ruled that the lawyers for the former employees could send an approved notice to employees by regular mail, as well as electronic mail notification. The court refused to allow Cooper’s lawyers to send a reminder notice postcard to all employees. The notice was to give current and former employees of East Coast sixty (60) days to decide whether to “opt-in” and join the suit or not. The notice was sent to employees employed during the three (3) year period prior to the filing of the lawsuit.
Lawyers Contact Employees
East Coast also asked the court to enter an injunction prohibiting the lawyers that represented Cooper from e-mailing and contacting other employees of East Coast. East Coast presented evidence to the court that the Morgan &Morgan law firm had sent the following e-mail to a group of East Coast employees.
My name is Andrew Frisch and I am a lawyer with the law firm of Morgan and Morgan. Don’t worry, you are not in trouble! As you may have heard, our firm investigating [sic] [Defendants] regarding alleged violations of federal and state overtime laws. Specifically, our clients, who were/are Assemblers, allege that during their employment, they were not paid required overtime premiums when they worked in excess of 40 hours per week. Instead, our clients allege that [Defendants] violated the law because it paid them solely piece-rates, regardless of the amount of hours they worked each week.
As part of our continuing investigation into these allegations, your name has been identified in public records as a former [Defendants] employee who may have personal knowledge of the allegations in this lawsuit. To be clear, the purpose of this email is not to solicit you to join this lawsuit or advertise our firm. Rather, we are contacting you to determine whether you have any knowledge of the allegations at issue so that we may conduct our full and complete investigation of the claims and the alleged violations at issue on a national level. To the extent you have any knowledge or information on these allegations in any way, we are asking that you voluntarily contact us to discuss same. You are under no obligation at all to respond to this email or contact us even if you (sic) information and we will not email or contact you again. If, however, the class of employees that we currently represent gets certified as a class action, you may receive a court notice in the mail providing you with an opportunity to join this case. Again, whether you decide to do so will be entirely up to you.
For your reference a copy of the Collective Action Complaint is attached.
Thank you for taking the time to read this email. If you have any information you would like to share, or simply need additional information from me before disclosing any information, please feel free to respond to this email and or email me at firstname.lastname@example.org. Alternatively, my contact information is listed below if you prefer the telephone to written communications. Also, you may forward this email to anyone you believe would be interested in speaking to me regarding their employment or former employment as an Assembler with [Defendants].
The e-mail also included a link to Mr. Frisch’s blog. The blog contained a consent to join form as well as a contact information form.
An unknown person received Mr. Frisch’s e-mail and, rather than forwarding the e-mail on to someone who would be interested, this person e-mailed a press release of the case to some East Coast employees. This press release solicited participation in the lawsuit. The Court held that Mr. Frisch’s e-mail was not an improper solicitation or an improper communication with employees. The Court ruled it was not improper since the e-mail was investigatory in nature and not designed to solicit assemblers to join in the lawsuit. The only solicitation was sent in the second e-mail by the unknown person who the court presumed to be another assembler and who took it upon himself to solicit participation in the suit. In short, the court held that communication between lawyers and unrepresented former or current employees was not improper. Justin Cooper, et al. v. East Coast Assemblers, Inc., and Glen Schneider, Case No. 12-80995-CIV-MIRRA, (S.D. Fla., January 25, 2013)
Conclusion: This opinion gives insight into the way law firms are litigating wage/ hour and employment cases in Florida. Many personal injury law firms in Florida are screening all potential clients for wage and overtime violations. The high number of wage hour cases filed in Florida is continuing. Audit your pay practices so you can avoid wage/hour suits.