Perez v. Escobar Construction, Inc.

Background

This order addressed issues concerning the notice requested in the plaintiffs’ motion for conditional approval of a collective action. The court stated that notice should inform as many potential plaintiffs as possible about the lawsuit and their right to join, without becoming an improper search for claims or imposing undue burdens on defendants.

Information Defendants Must Provide

Defendants must provide, within 21 days, the names, last known mailing addresses, last known email addresses, last known telephone numbers, and known employment dates of qualified potential participants who may opt in. The ruling does not prevent plaintiffs from later showing that additional information is needed to reach a particular person or group.

Opt-In Period and Notice Content

The opt-in period will be 60 days because the court found no special circumstances requiring a longer period. Defendants may include a brief statement denying the claims and stating that they complied with the Fair Labor Standards Act, the federal wage-and-hour law involved in the notice.

The notice does not need to tell potential participants that they could be asked to pay litigation costs. It must not include contact information for defendants’ lawyers. The court also required simpler language explaining that the court approved the notice but has not decided whether the lawsuit will succeed or whether potential participants are owed money. The notice must state that people who do nothing will not become part of the lawsuit, will not collect money if the lawsuit succeeds, and will not be bound by or affected by decisions in the lawsuit.

Method of Distribution and Communications

The notices must be sent by U.S. mail and, when an email address is available, by email. The notices need not be posted in the workplace, included in pay envelopes, or placed on a website at this time. A reminder notice may be sent by mail and email halfway through the 60-day period.

Because plaintiffs did not oppose defendants’ request, plaintiffs’ lawyers may not make follow-up or unsolicited cold telephone calls to potential participants. The court allowed plaintiffs to renew their request if they have a basis for believing that the approved methods have not successfully reached current employees.

Disposition

The court ordered plaintiffs to confer with defendants and revise the proposed notice in accordance with the order. The order governed the notice process; it did not decide the merits of the lawsuit or whether plaintiffs were entitled to damages. Judge Gabriel W. Gorenstein issued the order.