In Cabrera v. Stephens, the Eastern District of New York conditionally certified an FLSA collective of 7-Eleven workers who alleged that their time records were manipulated and that they were not appropriately paid for all hours worked. See No. 16-CV-3234 (ADS) (SIL) (E.D.N.Y. Sept. 28, 2017). The motion for conditional certification was accompanied by a motion to strike declarations submitted by the employer of putative class/collective members who contended that they had been appropriately paid for all hours worked. The plaintiffs alleged they had been obtained under coercive circumstances. The motion provided the Court with an opportunity to outline the permissible scope of employer and/or defense counsel communications with putative class/collective members.

The Court repeated the general principle that “employers are free to communicate with unrepresented prospective class members about [a] lawsuit and even [] solicit affidavits from them concerning the subject matter of the suit.” The Court’s potential ability to intervene is guided by its “inherent power to regulate and restrict communications to prevent manifest injustices and to preserve the integrity of [its] proceedings.” However, the Court noted that under Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981), it could not act in the absence of a “specific record showing…the particular abuses by which [the moving party] is threatened.” The “mere possibility of abuses” is insufficient to warrant an order.

The Court found the record before it to be bereft of any coercive or otherwise impermissible communications by the employer in connection with its efforts to obtain affidavits. All affiants met with the employer in his office, were informed about the lawsuit, under the basics of the claims, read their affidavits, and understood that by signing the affidavits, they were potentially compromising their ability to recover in the lawsuit. The affiants that met with defense counsel did so under similar circumstances, and were also told that they should not execute the affidavits if they were not entirely accurate. As a result, the Court held that an order striking the affidavits or restricting the communications of the employer/defense counsel was not warranted.

Cabrera reaffirms some basic principles concerning the scope of communications an employer and/or defense counsel may have with putative class/collective members. Importantly, the communications here occurred prior to the certification of any class or collective such that the affiants could not be said to be represented by plaintiff’s counsel. Despite Cabrera, employers should consult with counsel prior to initiating any communications with putative class/collective members to avoid potential pitfalls in an area fraught with them.