By Paul James
A plaintiff’s right to pursue discovery of employee contact information in wage-and-hour class actions has long been a problematic issue for employer defendants. In addition to the cost of compiling and producing voluminous contact information, production of such information potentially allows the plaintiff’s counsel to use the discovery process to “bootstrap” previously unsupportable claims from employee grievances that are common to a larger group or class of employees.
Despite clear infringement on employee privacy interests, numerous decisions have approved production of employee contact information to allow pre-certification communication by the representative plaintiff with potential class members for the purpose of investigating and preparing the class claims. (See Pioneer Electronics (USA), Inc. v Superior Court (2007) 40 Cal.4th 360, 366.) ; Experian Information Solutions, Inc. v Superior Court (2006) 138 Cal.App.4th 122, 130; Best Buy Stores, L.P. v Superior Court (2006) 137 Cal.App.4th 772, 779.; Safeco Ins. Co. of Am. v Superior Court (2009) 173 Cal.App.4th 814, 828.) Disclosure of employee contact information has even been ordered where putative class members had signed forms prior to the litigation stating that they did not want their contact information released. (Crab Addison v. Superior Court (2008) 169 Cal.App.4th 958) In order to protect employee privacy interests, some courts have required employers to send an “opt out” notice in advance of a compelled disclosure to allow current and former employees to object to disclosure of employee contact information. (Belaire-West Landscape, Inc. v. Sup.Ct. (Rodriguez) (2007) 149 Cal.App.4th 554, 561.) Unfortunately, such a procedure presents yet another burdensome expense for the employer while arguably helping the plaintiff to more clearly identify a putative class of employees.
In the recent decision of Williams v. Superior Court, however, the Second District Court of Appeal placed limits on a plaintiff’s ability to seek employee contact information in a representative wage-and-hour action. Williams involved a representative action brought by a retail employee for Labor Code violations under the Labor Code Private Attorney General Act (PAGA), under which a plaintiff employee may pursue representative claims on behalf of other employees in exchange for a share of the recovery. During the initial stages of discovery, the plaintiff sought the names and contact information for all the defendant's employees in California employed during a specific time period. The plaintiff’s counsel claimed the information was necessary to pursue claims on behalf of a putative statewide group of current and former employees.
Ultimately, because the plaintiff failed to demonstrate that policies in violation of the Labor Code were implemented on a statewide basis, the Court of Appeal denied the plaintiff’s writ to reverse the trial court’s order prohibiting such discovery. In support of this ruling, the court reasoned that plaintiff’s tactic represented a “classic use of discovery tools to wage litigation rather than facilitate it.”
Additionally, the Court of Appeal rejected the plaintiff’s argument that the plaintiff’s right to discovery was as broad as that of the Labor Commissioner based on the plaintiff’s status as a proxy for the California Division of Labor Standards Enforcement. The Court noted that the PAGA statute only confers the right of a private cause of action on behalf of a group of aggrieved employees; it does not confer the entire investigative authority of the Labor Commissioner.
Going forward, the Williams decision will certainly help employers to resist an immediate demand for contact information for all employees in class and representative actions. The decision supports the position that a plaintiff cannot simply allege class claims in order to obtain discovery of class contact information. Class claims must be supported by some evidence that the claims apply to the group of employees whose contact information is sought.
