Communicating With Putative Class Members in Complex Employment Litigation

In the early stages of an employment class or collective action, employers and their counsel often are eager to contact putative class members. For example, defense counsel may wish to interview putative class members in order to identify and establish a factual basis for defeating class certification or the underlying claims in the lawsuit. Interviews may also assist the employer in assessing potential liability. Moreover, because putative class members usually include existing employees, some level of communication between employer and putative class members is unavoidable. However, once a lawsuit has been filed or threatened, communications with putative class members may implicate ethical prohibitions on communications with represented parties. And direct communications from employers to putative class members, while not subject to the ethical constraints on attorneys, must not be misleading or coercive.

For defense counsel, the propriety of communication with putative class members depends on whether those sought to be interviewed are represented by counsel. Whether putative class members are deemed to be "represented by counsel" depends on the status of class certification. In the Rule 23 class-action context, there is no question that named plaintiffs are represented by class counsel and may not be contacted without permission. There is also general agreement that, before a class is certified, unnamed or putative class members are not represented and may be contacted (subject to the potential judicial restraints discussed below). After a class is certified, the answer is a little murkier and may depend on jurisdiction. According to a 2007 formal opinion by the American Bar Association, "putative class members are not represented parties for the purposes of the Model Rules prior to ... the expiration of the opt-out period." ABA Comm. on Ethics & Prof `l Responsibility, Formal Op. 07-445 (2007)). However, some courts have found the attorney-client relationship to exist before the opt-out period expires and some states depart from the ABA's Model Rules, so employers and their counsel should consult local ethical rules before contacting putative class members after a Rule 23 certification. In an opt-in collective action, an unnamed class member is not represented until the court has granted conditional certification and the unnamed individual has opted into the case.

Recognizing that there is a unique relationship between class counsel and putative class members after class claims have been brought but before class certification, courts have found that while an employer or its counsel may speak to putative class members in the pre-certification phase of a lawsuit without the permission of class counsel, the employer and its lawyers must refrain from making coercive or misleading communications to putative class members, and must take care to explain the context and purpose of the communication. The leading case addressing communications with putative class members is Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). In Bernard, the Supreme Court noted that because there is a potential for abuse when putative class members are contacted by parties or their counsel, courts may impose restrictions on such communications. Importantly, however, the Court rejected a per se ban on such communications. Instead, it explained that orders limiting communications with potential class members require "a specific record showing by the moving party of the particular abuses by which it is threatened." Id. at 102 (quoting Coles v. Marsh, 560 F.2d 186, 189 (3d Cir. 1977)). 

There are myriad different ways that communications may become sufficiently coercive or misleading as to warrant court intervention. Examples include making misstatements or omissions about the nature of the case; encouraging employees to accept a settlement; or attempting to obtain a release without informing the employee of the pending lawsuit. Additionally, some courts have found that the employer-employee relationship is inherently coercive, and communications with current employees receive closer scrutiny. Fortunately, there are also many examples of communications between the defense and potential class members—including current employees—that did not merit court intervention and that provide guidance for the prudent employer and its counsel.  Those cases suggest that employers and their counsel undertake precautions when communicating with putative class members about an underlying case, such as:

• Advising the interviewee of the underlying litigation to provide necessary context for the interview
• Explaining that the purpose of the interview is to assist the employer in investigating or defending against such claims, or both
• Emphasizing that the interviewee's participation in the interview is voluntary, and that the interviewee cannot be retaliated against for answering questions truthfully or refusing to answer questions
• Pointing out that the information obtained from the interviewee may be used as evidence to defeat class certification or to defeat the underlying claims

In sum, employers facing a class or collective action and their counsel must be careful when reaching out to putative class members. While the potential benefits of communicating with putative class members are clear and a necessary part of a successful defense, defendants must be careful not to violate applicable ethical and judicial constraints. Prior to making contact with putative class members—and especially current employees—employers should review the local jurisdictional requirements, coordinate with defense counsel, carefully craft a communication plan that is not misleading or coercive, and then stick to the plan. A misstep could lead to sanctions, including court supervision of the communication process, or even a ban on communications, either of which harms an employer's ability to successfully defend against a class or collective action.