Orbetta v. Dairyland USA Corporation

Background

Mauricio Orbetta alleges that he formerly worked as a delivery driver for Dairyland USA Corporation and The Chef’s Warehouse, Inc. Fifty-two other plaintiffs joined the case. Plaintiffs asserted claims under the Fair Labor Standards Act, a federal wage law, and the New York Labor Law. Their claims allege failures to pay minimum and overtime wages and to provide required wage notices. Plaintiffs also allege that Defendants’ federal wage violations were willful, which would allow use of a three-year rather than two-year limitations period for those claims.

The International Brotherhood of Electrical Workers Local 1430 represented Plaintiffs in collective bargaining with Defendants. Jordan El-Hag, Plaintiffs’ lead counsel, was the Union’s chief officer and legal counsel and served as chief negotiator or a member of the bargaining committee during negotiations that produced collective bargaining agreements. He was not the Union’s only representative in those negotiations. El-Hag stated that he had no firsthand knowledge of Defendants’ decision-making about the agreements or their compliance with federal or New York wage law.

Defendants’ Motion

Defendants moved to disqualify El-Hag as Plaintiffs’ lawyer under the lawyer-witness rule. That rule generally restricts a lawyer from serving as an advocate when the lawyer is likely to be a witness on a significant factual issue. Defendants argued that El-Hag’s testimony would be significantly useful to Plaintiffs because he negotiated the wage arrangements. They also argued that his testimony would be necessary to Defendants and harmful to Plaintiffs because it could show that the parties understood the delivery drivers to be exempt from certain federal overtime requirements.

Court’s Analysis

The court concluded that neither argument justified disqualification. Plaintiffs had not said they intended to call El-Hag as a witness. The complaint did not refer to the collective bargaining agreements or the negotiations, and the court stated that the agreements did not appear likely to show whether Defendants violated wage law. Defendants also had not identified what El-Hag would testify about or shown that his testimony would be relevant and admissible. The court found that general speculation about possible testimony was insufficient.

The court further explained that willfulness depends on the employer’s state of mind, not the employee’s. Any testimony from El-Hag about his own understanding of the wage arrangement would have limited value in showing what Defendants believed about compliance with federal law. Other members of the Union’s bargaining team or Defendants’ bargaining team could testify about the negotiations and the parties’ statements. The availability of those alternative witnesses weighed strongly against finding that El-Hag’s testimony was necessary.

The court also rejected Defendants’ claim that allowing El-Hag to remain as counsel would substantially prejudice Plaintiffs. Defendants’ argument that El-Hag’s testimony might contradict the complaint was speculative and did not establish a substantial likelihood of prejudice.

Disposition

The court denied Defendants’ motion to disqualify El-Hag as counsel for Plaintiffs and directed the Clerk of Court to close the motion at Docket Number 89. The opinion did not decide the merits of Plaintiffs’ wage-and-hour claims.