It is common practice among employers to periodically remind employees of company employment policies. If in the midst of class-action litigation, however, employers must be careful of the content and timing when sending such reminders. As can be seen from a recent New Jersey District Court case, Maddy v. General Electric Co., Civ. No. 14-0490 (D.N.J. March 23, 2015) (JEI)(KMW), distributing reminders regarding certain employment policies during the class action opt-in period may subject the employer to certain court-imposed remedial measures.
In Maddy, the class action plaintiffs filed an FLSA action against General Electric Co. (GE), asserting that GE failed to pay service technicians for time spent in the morning logging into computers to retrieve customer calls and get ready for the day. Id. at *1-2. The Court granted preliminary certification and, thereafter, facilitated class notice to all class members. Less than a month later, and within the ninety-day opt-in period, a customer service manager for a region in California distributed by e-mail an overtime policy reminder to the service technicians. That e-mail, entitled “Time worked and time reporting – MUST READ” stated, inter alia:
Over the past years, multiple emails have been sent, PowerPoint presentations shared, and during tech meetings I have stressed the importance of the Company's Timecard Guidelines. It is imperative that you understand there is to be absolutely NO GE work performed off the clock. Any time spent performing GE work needs to be reported on your timecard. This includes, but is not limited to, sending work related emails before you start your work day or after you end your work day, as well as accessing GE Systems such as TPTP to conduct any GE work. If you have to do work related tasks before your start time or after your start time, you are required to request approval from me in advance, and then once approved, the time must be added to your time card.
So there is no misunderstanding, the above should be considered direct work instruction and failure to abide by these instructions will be considered insubordination, a category 2 work rule violation, and discipline will ensue - up to and including termination.
You may look at your route prior to departing your home in order to know where your first stop will be. However, as stated in Paragraph 1 above, you would not be accessing TPTP for any other purpose outside your workday. Should you perform company work, it must be reported.
Id. at *3-4.
The Court held that this e-mail was an “improper communication” between GE and the employees, who could “reasonably believe that opting into the litigation was pointless based on the definition of ‘work,’ or, worse, that they would risk their jobs by admitting to that kind of activity, a necessary consequence of opting-in.” Id. at *7-8. In so holding, the Court focused on the content and timing of the e-mail. Id. at *6-7. First, the Court found that the e-mail “(1) takes a legal position on the definition of compensable ‘work,’ and (2) threatens discipline, up to and including termination, for the activity to which GE’s service technicians would necessarily admit by joining the collective action.” Id. at *7. Second, in rejecting GE’s argument that the e-mail was sent merely in the “ordinary course of business,” the Court found that the “litigation acted as the catalyst for that communication,” based mainly on the dubious timing of the e-mail, which was sent three months earlier than the previous year and in the midst of the opt-in period. Id. at *7-9.
As to the remedial measures imposed, the Court ordered that GE send a curative notice to the employees who received the emails and provided a thirty-day extension of the opt-in period for those affected employees. Id. at *9-10. The Court further ordered that GE submit copies to the Court of any further communication with potential opt-in plaintiffs regarding timekeeping procedures and policies. Id. at *10.
The Bottom Line. In finding an employer has distributed improper communications to potential opt-in plaintiffs, courts have the authority to impose remedial measures, including forbidding additional ex parte communications, distributing corrective notices, and extending the plaintiff opt-in period. Such measures are not limited to collective FLSA actions, but may include, for example, those brought under the ADA or FMLA. Accordingly, it is recommended that employers refrain from distributing reminders to employees regarding a particular employer policy when two factors are met: (1) the employer policy is the subject of class-action litigation and (2) the parties to the litigation are in the midst of the opt-in period.