United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE, Chief District Judge.
This matter is before the Court on the plaintiffs' motion for a protective order. (Doc. 69). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 69, 72, 75), and the motion is ripe for resolution.
This FLSA action has been conditionally certified as a collective action, with the conditionally certified class consisting of all non-supervisory hourly workers admitted under the H-2B temporary foreign worker visa program and employed by the defendant at any point since October 2011. (Doc. 44 at 3, 5). The potential plaintiffs work or have worked as oyster shuckers at the defendant's oyster processing facility in Mobile County and are Mexican citizens who permanently reside in rural areas of Mexico. The defendants are Rodney and Ann Fox and their company, R&A Oysters, Inc.
The plaintiffs believe the defendants have engaged in coercive communications with several opt-in plaintiffs, two of whom have filed notices of the withdrawal of their consent to join the collective action. (Doc. 66). A third has submitted a withdrawal letter to plaintiffs' counsel. (Doc. 69-2 at 3).
The plaintiffs seek the following relief: (1) discovery regarding the circumstances surrounding the requests to withdraw; (2) written notice to all existing and potential plaintiffs advising that the defendants cannot condition future employment on non-participation in this lawsuit; and (3) an instruction to certain present and past employees and agents of the defendants regarding the FLSA's anti-retaliation provisions and this order. (Doc. 69 at 1-2).
As this Court has noted, in appropriate circumstances it has authority to limit communication between a defendant employer and existing and potential plaintiffs in an FLSA collective action. Longcrier v. HL-A Co., 595 F.Supp.2d 1218, 1226-27 (S.D. Ala. 2008). The standards are the same as those applicable in the class action context, id., since "[t]he same justifications [for judicial oversight over communications] apply in the context of" a collective action as a class action. Hoffman-LaRoche, Inc. v. Sperling, 493 U.S. 165, 171 (1989).
Before relief may be ordered, there must first be made a "specific record showing by the moving party of the particular abuses by which it is threatened." Gulf Oil v. Bernard, 452 U.S.89, 102 (1981) (internal quotes omitted). To satisfy Bernard, "[t]wo kinds of proof are required." Cox Nuclear Medicine v. Gold Cup Coffee Services, Inc., 214 F.R.D. 696, 697 (S.D. Ala. 2003). "First, the movant must show that a particular form of communication has occurred or is threatened to occur. Second, the movant must show that the particular form of communication at issue is abusive in that it threatens the proper functioning of the litigation." Id. at 697-98. "Abusive practices that have been considered sufficient to warrant a protective order include communications that coerce prospective class members into excluding themselves from the litigation...." Id. at 698.
The parties have submitted affidavits, declarations and other evidence in support of their respective positions. Neither side requests an evidentiary hearing; on the contrary, the defendants insist the Court should resolve the instant motion on the existing record. (Doc. 72 at 9). Therefore, and because the proper resolution of the instant motion is clear on the existing record, no hearing will be held. See Ojeda-Sanchez v. Bland Farms, 600 F.Supp.2d 1373 (S.D. Ga. 2009) (resolving a similar motion based on affidavits). The Court makes the following determinations based on the evidentiary materials submitted by the parties.
Angel Santos Wilson is an oyster shucker for the defendants but is not employed under the H-2B program. He is married to Nanette Wilson, who is employed by the defendants in the office as executive secretary and who is in charge of making the annual list of those H-2B workers the defendants will invite to return to work the next season. Angel is a frequent conveyor of news and messages from the office to the oyster shuckers.
In May 2015, Angel told several H-2B workers on the defendants' premises that defendant Rodney Fox ("Rodney") wanted them to know they could return to work under the H-2B program if they withdrew from this lawsuit. One of those present for this conversation is among the three that have since requested to withdraw. Another opt-in plaintiff heard co-workers say the defendants were offering future work in exchange for withdrawing from the lawsuit, and Angel confirmed to him that this was correct.
Angel denies he told anyone that they would have to ask Rodney for "forgiveness" or that Rodney had "promised" work for anyone who withdrew from the lawsuit, but he does not deny making statements indicating that the defendants were conditioning future work on withdrawal from the lawsuit. For these and other reasons, the Court finds on this record that the communications asserted by the plaintiffs' declarants did occur.
Rodney denies that he spoke directly with any H-2B employees or that he "directed" Angel to do so, but he does not deny suggesting that Angel do so. Rodney denies that he and Angel speak a common language well enough for him to suggest what Angel should say, but he does not deny that Nanette could relay his position to Angel. And although Rodney denies that Angel had any authority, actual or apparent, to speak for the defendants, he does not deny that Angel often relates information from the office to the H-2B workers. Nor does Rodney deny that Angel accurately related his (Rodney's) position ...