Earlier this year, the California Supreme Court allowed a plaintiff in a product defect class action access to prospective class members' contact information (addresses and telephone numbers) absent an affirmative request by the prospective class members to keep the information private. Recently, the Second District Court of Appeals applied the same standard to an employment class action. In Belaire-West Landscape, Inc. v. Superior Court, the Court allowed a former employee plaintiff pre-certification access to contract information of other current and former employees absent an affirmative request by the individual employees to keep the information private.

In Belaire-West, two former employees of Belaire-West filed a putative class action against the company on behalf of themselves and other current and former employees alleging violations of California's wage and hour laws. In discovery, the plaintiffs sought the names, addresses, and telephone numbers of all current and former employees employed by Belaire-West since the year 2000. The company objected, asserting the privacy rights of its employees. To resolve the dispute, Belaire-West offered to send the current and former employees notice of the plaintiffs' request for the contact information and to provide the contact information for any employee who responded and agreed to the disclosure. Plaintiffs, on the other hand, wanted Belaire-West to provide the contact information for all employees who did not actively object in writing to the information being provided to the plaintiffs. The trial court sided with the plaintiffs and ordered Belaire-West: 1) to send a notice to its current and former employees informing them of the plaintiffs' request and giving the employees the opportunity to elect to keep their contact information private by filling out and returning an enclosed postcard and 2) to give the plaintiffs the contact information for all employees who did not actively object by returning the postcard. Belaire-West appealed, claiming that the process did not adequately protect the employees' privacy interests.

The Court of Appeals upheld the trial court's ruling, finding that the notice procedure adequately protected the privacy rights of the current and former employees. Importantly, the Court of Appeals held that current and former employees had a reasonable expectation of privacy for information given to their employers because the information was given as a condition of employment and not voluntarily. Even though the employees had a reasonable expectation of privacy, the Court nonetheless held that the disclosure was proper in this case because the contact information (telephone numbers and addresses) was not "particularly sensitive" information. Consequently, according to the Court, its disclosure was not a serious invasion of privacy, especially when the employees had the opportunity to keep the information private if they desired by responding to the notice. Furthermore, the Court held that the plaintiffs' interest in obtaining the contact information of potential witnesses outweighed the potential infringement on the employees' privacy.

Employers should be aware of two important points from this case. First, the Court of Appeals specifically held that employees have a reasonable expectation of privacy in the information they provide to their employers. Therefore, employers should continue to take necessary steps to protect employee information from disclosure. Second, employers involved in wage and hour litigation should be aware that a court may grant pre-certification disclosure of putative class members' contact information to the plaintiff, thereby allowing plaintiff's counsel the opportunity to contact a large number of current and former employees as potential witnesses.