BRASHER et al v. Quincy Properties LLC, doing business as Welcome Inn et al

Filing 118

OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Plaintiffs' Motion for Protective Order 96 is ALLOWED in part and DENIED in part. Motion for Protective Order 106 is DENIED as moot. See written order. (LB, ilcd)

3:17-cv-03022-SEM-TSH # 118

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E-FILED

Friday, 29 September, 2017 03:21:13 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
APRIL R. BRASHIER, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
QUINCYPROPERTY, LLC, et al., )
)
Defendants.
)

No. 17-cv-3022

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiffs’ Motion for Protective
Order (d/e 96) (Motion 96). In response, Defendant American Motels, LLC
asks for expedited discovery and an evidentiary hearing on the Motion.
Response of American Motels, LLC to Plaintiffs’ Motion for a Protective
Order and request for Evidentiary Hearing and Expedited Discovery (d/e
105) (Response). Welcome Inn Hotel Management, Inc. (Management)
moves to join American’s Response. Defendant Welcome Inn Hotel
Management, Inc.’s Motion to Join Defendant American Motels LLC’s
Response to Plaintiffs’ Motion for a Protective Order and Request for
Evidentiary Hearing and Expedited Discovery (d/e 106) (Motion 106).
Management’s Motion 106 is DENIED as moot. Management is no longer
a defendant in this case. Plaintiff alleged no claims against Management in
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the Third Amended Complaint (d/e 94). The request for expedited
discovery and an evidentiary hearing is DENIED. The parties have
thoroughly addressed the issues and provided sufficient information to
resolve Motion 96.
For the reasons set forth below, Motion 96 is ALLOWED in part and
DENIED in part. The Court: (1) directs the parties to send a corrective
notice in the form set forth in this Opinion to employees whom Defendants
Kenneth Logan and Quentin Kearney interviewed regarding this case
(Interviewed Employees); and (2) directs the Defendants to: (a) make
certain disclosures in any future communications or contacts related to this
action with current, former, or prospective employees; and (b) cease asking
current, former, or prospective employees to sign preprinted “fill-in-theblank” form declarations, affidavits, or other sworn or unsworn statements
of facts based on personal knowledge related to this case. The Court will
assess the costs of production and distribution of the corrective notice after
the District Court resolves the pending motions to dismiss or transfer venue
(d/e 98, 100, 102). Motion 96 is otherwise denied.

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BACKGROUND
Plaintiffs April R. Brashier, Richard M. Orencia, and Chad O. Lebow
filed this action on January 28, 2017.1 Plaintiffs allege that they worked in
the Defendants’ hotels. Plaintiffs allege that the Defendants illegally failed
to pay Plaintiffs overtime due and owing under the Fair Labor Standards
Act (FLSA). 29 U.S.C. § 201 et seq. The Plaintiffs contend that the
Defendants misclassified the Plaintiffs as salaried employees exempt from
the FLSA overtime requirements. Plaintiffs also allege that Defendants
illegally deducted amounts from employees pay in violation of the FLSA.
Plaintiff Brashier further alleges that Defendants retaliated against her by
terminating her because she complained about a lack of overtime pay
and/or threatened illegal wage deductions.
Plaintiff Lebow alleges Defendants retaliated against him by reducing
his wages and/or strictly scrutinizing his work because he requested
overtime pay. Third Amended Complaint, ¶¶ 2-4. The Plaintiffs bring
claims under the FLSA, the Illinois Minimum Wage Law (IMWL), 830 ILCS

1

Some of the documents filed by Plaintiffs spell Plaintiff April Brashier’s last name as “Brasher.” See
e.g., Complaint (d/e1), Amended Complaint (d/e 4), Second Amended Complaint (d/e 16). The Third
Amended Complaint (d/e 94) spells her name Brashier. Her name is spelled “Brasher” in Motion 96. She
spelled her name “Brashier” on her Consent to become a FLSA Party attached to the Complaint. The
Court spells her name “Brashier.”

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105/1 et seq., and the Illinois Wage Payment and Collections Act (IWPCA),
820 ILCS 115/1 et seq.
Plaintiffs have moved for certification of a collective action for all
similarly situated employees and former employees. Plaintiffs’ Motion for
Certification of Collective Action, for Disclosure of Potential Opt-In Plaintiffs'
Contact Information and Court-Approved Notice (d/e 5) and Plaintiffs’
Motion for Certification of Collective Action, For Disclosure of Potential OptIn Plaintiff’s Contact Information and Court-Approved Notice (d/e 82)
(collectively Motion 5). Motion 5 is pending.
Upon receipt of the Plaintiffs’ Complaint, Defendants Logan and
Kearney interviewed several employees of one or more of the Defendants.
Logan and Kearney held equity interests in Defendants Quincy Property,
LLC, Vandiver Motel, Jefferson Property, County Line Properties LLC, and
Springfield Welcome Inn. Logan and Kearney both held the position of
manager with these Defendant entities. Logan stated that he and Kearney
interviewed employees “to determine whether there was any merit to the
Plaintiffs’ allegations, and whether additional compensation might be owed
to any of the Defendants.” Response, Exhibit A, Declaration of Kenneth
Logan (Logan Declaration) ¶¶ 2-4; and Exhibit B, Declaration of Quentin
Kearney (Kearney Declaration) ¶ 2.
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Logan and Kearney brought to each of these interviews a draft
declaration form prepared by Defendants’ counsel. Logan Declaration ¶ 6;
Response, Exhibit C, Declaration Form (Form). The Form had the caption
of this case at the top. The title of the Form was “Declaration of
_____________.” (The blank was to be filled in with the employee’s
name.) The first paragraph of the Form stated:
1.

I have been interviewed regarding this Declaration and I
choose to complete it without threat or coercion or
retaliation. I understand that I am free to decline to
complete this Declaration and my decision to decline
cannot be used against me or negatively impact my
rights or my employment.

Form ¶ 1. The next five paragraphs had several blanks for the employee’s
place of residence, the name of Defendant entity that employed the
employee, the dates of employment, and the location where the employee
worked. Form ¶¶ 2-5.2 The last seven paragraphs of the Form were as
follows:
6.

7.

I work ________hours per week______________.

8.

2

I have (sic) a (circle one) salaried/hourly employee of
____________.

My work for ______ has included overtime for which I
have been paid time and a half.

The Form has two paragraphs numbered 2.

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9.

___________is my supervisor at _______ location

10.

I am not owed any compensation for hours worked at any
property owned or operated by _______________.

11.

No deductions have ever been improperly taken out of my
salary, including any deductions for errors committed
during work.

12.

I have no desire to participate (“opt-in”) to a lawsuit filed
pursuant to the Fair Labor Standards Act, Illinois
Minimum Wage Payment Act, or the Illinois Wage
Payment and Collection Act.

Form ¶¶ 6-12.
The Form ended with the declaration, “Pursuant to 28 U.S.C. § 1746,
I declare under penalty of perjury that the above is true and correct,”
followed by date and signature lines for the employee.
Logan stated that he and Kearney used the Form as a “discussion
model to frame the discussions” in the interviews. Logan stated that the
Form was modified “as a result of the interviews of each of the employees.”
Logan further stated that if any employee stated that he or she was owed
money, the employee was promptly paid the amount he or she believed
was owed. Logan stated that the person was not required to sign a
declaration to receive the additional compensation. Logan Declaration ¶¶ 48. Logan stated that at no point was any employee threatened or coerced
to sign a declaration. Logan Declaration ¶ 14.
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The Plaintiffs presented affidavits of two former employees who
Logan or Kearney interviewed.3 Motion 96, Exhibit 1, Affidavit of Jason
Smidt (Smidt Affidavit), and Exhibit 2, Affidavit of Debra S. Schoen (Schoen
Affidavit). Smidt posted ads on Craig’s List for some of the Defendant
entities.4 He later worked for Defendants Vandiver Motel and later
Springfield Welcome Inn. He also worked at the Quincy Inn, but he does
not identify the Defendant entity that owned or operated the Quincy Inn.
Smidt Affidavit ¶¶ 4-5. Schoen worked for Defendant American Motels LLC
and Defendant Jefferson Properties. Schoen Affidavit ¶ 3.5 Kearney
interviewed Smidt. Logan interviewed Schoen.
According to Schoen, Logan called Schoen to his office for the
meeting. Schoen’s direct supervisor Mary Guggenheim also attended the
meeting. Logan told her that Chad Lebow and some others filed a lawsuit
claiming they were owed overtime. Logan said some other employees he
interviewed claimed that they were owed overtime and he paid them.
Logan referred to the other employees as the “Mexicans.” Logan asked
Schoen if she was owed overtime. Schoen told Logan no because she
was a salaried employee. Schoen Affidavit, ¶¶ 4-15.

3

The exhibits were titled affidavits, but were unsworn declarations under penalty of perjury.
Smidt did not identify the specific Defendants for whom he posted ads. He said he posted ads for “all
the companies that existed at the time.” Smidt Affidavit ¶ 4.
5
Neither Schoen nor Smidt state the dates when they worked for any Defendant.
4

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Logan asked her to sign a paper saying that she was not owed any
overtime. According to Schoen, Logan repeatedly asked her to sign the
paper and insisted that she should sign the paper. Schoen agreed to sign.
Schoen stated that Logan gave her a two-page document to sign.
According to Schoen, she told Logan she wanted to read the document, but
he insisted that she sign. Schoen stated that Logan told her that he had
already told her what was in the document. Schoen said she wanted to
show the document to a lawyer. According to Schoen, Logan insisted that
she sign immediately and not wait. Schoen Affidavit, ¶¶ 16-27. Schoen
stated, “Feeling fearful for my job, and fearing that if fired I would be evicted
from Defendants’ Motel where I was residing, within hours or days, I finally
agreed to sign.” Schoen Affidavit, ¶ 28. Schoen stated that she
understood she would have to move within three days if she was fired. She
stated, “The possibly (sic) of being forced to move with only three days’
notice, was a large concern for me.” Schoen Affidavit, ¶ 30.
Schoen concluded, “I only signed based on the fear and intimidation
pressed into me by Mr. Logan, combined with lack of knowledge as to what
I was signing, what the claims were, what the basis of the lawsuit was.”
Schoen Affidavit, ¶ 34. Logan said that Guggenheim would give Schoen a

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copy of the document she signed, but she never received a copy. Schoen
Affidavit, ¶¶ 35-38.
Plaintiffs attached the Welcome Inn Employer-Employee Housing
Agreement (Housing Agreement). Motion 96, Exhibit 3, Housing
Agreement. The Housing Agreement stated that the employee had to
vacate their housing at the Defendant’s hotel or motel immediately when
employment ended. Housing Agreement § 3(a).
Logan disputes many of Schoen’s statements about his interview of
her. According to Logan, he told Schoen she was free to participate in the
interview or not. Logan agreed that Schoen said she was not owed any
additional compensation. Logan stated he did not coerce or threaten any
person he interviewed. Logan Declaration ¶¶ 11-12, 14. With respect to
Schoen, Logan stated, “At no time did I raise the issue of her residence at
any of the hotels or how her answers in the interview might affect her
continued right to stay on any property of the Defendants.” Logan
Declaration ¶ 13. Logan further stated that no employee has been evicted
from any of the Defendants’ properties because of participating in the
interviews or refusing to sign a declaration. Logan Declaration ¶ 9.
Kearney and Smidt also disagree over the details of Smidt’s
interview. According to Smidt, Kearney called Smidt to meet with him. At
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the meeting, Kearney asked if he owed Smidt any money. Kearney
explained that there was a lawsuit and he wanted to know if Smidt thought
he was owed any money. Smidt said he was owed $500. Smidt Affidavit
¶¶ 1-11. According to Smidt, Kearney said, “I will pay what you think you
are owed, but you have to sign a document saying you will never sue.”
Smidt Affidavit ¶ 12. Kearney transferred $500 to Smidt’s bank account.
Smidt used his smart phone to confirm the transfer. Kearney then gave
Smidt a document to sign. According to Smidt, Kearney told him that by
signing Smidt would not be able to sue him or the other Defendants in the
pending lawsuit. Smidt signed the document. Smidt Affidavit ¶¶ 15-16.
According to Smidt, Kearney told Smidt that if he tried to sue him, Smidt
would get nothing and would have to pay Kearney “a lot of money.” Smidt
Affidavit ¶ 18.
Kearney disputes several of Smidt’s statements. Kearney stated that
he asked Smidt about any money owed to him and paid Smidt the $500.00
“before I presented a declaration to Smidt based on our interview.”
Kearney Declaration ¶ 8. Kearney said he did not condition receipt of the
$500 on signing the declaration. Kearney also said that he never told
Smidt that once he signed the declaration, he could not sue any of the
Defendants. Kearney Declaration ¶¶ 9-10.
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Kearney further said that no employee was terminated for refusing to
participate in the interviews that he and Logan conducted, and no
employee was terminated for refusing to sign a declaration. Kearney said
that no one threatened or coerced any employee he interviewed into
signing a declaration. Kearney Declaration ¶¶ 11, 14. Kearney stated that
no person was evicted because of participating in the interviews or refusing
to sign a declaration. Kearney Declaration ¶ 13.
ANALYSIS
The Plaintiffs seek a protective order to stop Defendants from
contacting any current or former employees who might be allowed to opt
into this case if the Court allows the matter to proceed as a collective
action. The Plaintiffs further want a corrective notice sent to employees
who Logan and Kearney interviewed in connection with this action
(Interviewed Employees) and want Plaintiffs’ counsel to be allowed to meet
with all Defendants’ employees at Defendants’ expense. Defendants
oppose the Plaintiffs’ requests.
The FLSA authorizes the District Court to allow named parties to
proceed in a collective action for all similarly situated employees. Under
the FLSA, similarly situated employees may choose to participate or “opt-

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in” to participate in the action. 29 U.S.C. § 216(b). If the District Court
allows the pending Motion to Certify Class for FLSA Collective Action
(d/e 5), then the Court may approve a form of notice that will be sent to all
similarly situated employees that will explain the nature of the suit and the
available options to opt in or opt out of participation in this action. See
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 172, (1989). A similarly
situated employee may not waive his or her right to opt into a collective
FLSA action through private negotiations or private settlements. Such
privately negotiated settlement or waivers would frustrate the
Congressional policy to set minimum work requirements and standards.
Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 704-09 (1945).
Both parties have the right to speak to potentially similarly situated
employees who may be given the option of participating in a collective
action. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 98-99 1981); EEOC v.
Mitsubishi Motor Mfg. of America, Inc., 102 F.3d 869, 870 (7th Cir. 1996).
The Court has the discretion to limit communications with possibly similarly
situated employees when necessary to prevent abuses such as threats,
coercion, or misrepresentations of fact. See Williams v. Chartwell Financial
Services, Ltd., 204 F.3d 748, 759 (7th Cir. 2000). Restrictions on
communications must be carefully drawn to “limit speech as little as
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possible, consistent with the rights of the parties under the circumstances.”
Gulf Oil, 452 U.S. at 102. The Court must base any order limiting
communications on “a clear record and specific findings that reflect a
weighing of the need for a limitation and the potential interference with the
rights of the parties.” Gulf Oil, 452 U.S. at 101. The Plaintiffs have the
burden of proof on the issue. See Jones v. National Council of Young
Men’s Christian Associations of U.S., 2011 WL 1312162 (N.D. Ill. March
31, 2011) (quoting Gulf Oil, 452 U.S. at 102).
In this case, the Court finds that the record clearly shows that the
Form is misleading and requires a corrective notice be sent to Interviewed
Employees. Specifically, Paragraph 12 of the Form states, “I have no
desire to participate (“opt-in”) to a lawsuit filed pursuant to the Fair Labor
Standards Act, Illinois Minimum Wage Payment Act, or the Illinois Wage
Payment and Collection Act.” An employee could reasonably understand
this paragraph to constitute a binding decision or commitment to opt-out of
participation in this action (should the District Court allow the action to
proceed as a collective action). The paragraph states that the employee
does not want to opt-in to this action. An employee who signed the Form
adopted this statement under penalty of perjury. Such an employee could
reasonably believe that he or she made a binding commitment not to opt-in
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once he or she signed the Form. As such, the Form is misleading. A party
cannot waive his or her right to opt into a collective action under the FLSA
privately. Brooklyn Savings Bank, 324 U.S. at 704-09.
The Court recognizes that the Form does not expressly state that the
employee is waiving the right to opt-in. The Court also recognizes that
similarly situated employees further may express their current interests in
joining an FLSA collective action without waiving the right later to choose to
opt-in. The pre-printed Form, however, presumed that the employee had
no interest in opting in to a collective action. Asking employees to sign
such a preprinted form under penalty of perjury was misleading for the
reasons stated above.
The Court hereby directs that Plaintiffs are to send a court-approved
corrective notice (Notice) to each Interviewed Employee to correct the
misleading nature of paragraph 12 in the Form. The Notice will not refer to
the Court in order to allow the Court to maintain neutrality. See Woods v.
New York Life Ins. Co., 686 F.2d 578, at 581 (7th Cir. 1982). The Notice
shall not be printed under a letterhead to avoid associating the Notice with
one party. The Notice shall state the following:

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Notice to Current and Former Employees of [Insert Name of
Recipient’s Employer]
As you may know, your employer [insert name of
employer of the recipient] is a defendant is a lawsuit pending in
the U.S. District Court for the Central District of Illinois entitled
Brashier v. Quincy Property, LLC, et al., Case No. 3:17-cv3022-SME-TSH (referred to below as “the Lawsuit”). The
Plaintiffs in the Lawsuit allege that they are entitled to unpaid
overtime compensation for work performed for the Defendants,
including your employer. The Defendants deny any
wrongdoing and specifically deny that they owe any overtime to
the Plaintiffs.
The Plaintiffs have asked the Court to permit the Lawsuit
to proceed as a collective action. In a collective action, other
similarly situated employees may choose to participate in the
Lawsuit and allow the named Plaintiffs to proceed on their
behalf as well.
The Court has not yet decided whether the Lawsuit
should proceed as a collective action.
If the Court allows the Lawsuit to proceed as a collective
action, you will receive another notice. That notice will explain
the Lawsuit in greater detail and ask you to choose whether you
want to participate in the action and allow the named Plaintiffs
to proceed on your behalf as well as their own (opt-in) or not
participate (not opt-in or opt-out). In that event, that notice will
give you the opportunity to opt-in or not opt-in to the Lawsuit.
[Insert name of person who interviewed the recipient]
interviewed you after the Lawsuit was filed. He asked you
whether [insert Name of Employer] owed you any overtime or
other payments and asked you to sign a document called a
Declaration. The Declaration may have stated you had no
interest in opting into the Lawsuit.

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We are sending this notice to you to make sure that you
understand that, by signing a Declaration, you did not give up
your rights in the future to choose whether to opt-in or opt-out of
the Lawsuit.
If the Court decides that the Lawsuit should proceed as a
collective action, you will receive a notice that offers you the
option to opt-in or opt-out of participating in the Lawsuit. In that
event, you will still have the right to opt-in or opt-out regardless
of whether you signed or did not sign a Declaration.
The signatures of the attorneys for the Plaintiffs and
Defendants shall appear at the bottom of the Notice.
Plaintiffs shall submit a proposed Notice to the Court for
approval, with a copy to Defendants, before sending the notice.
Once approved by the Court, Plaintiffs shall send the Notice by first
class mail to the Interviewed Employees. Defendants are to provide
Plaintiffs with the names and addresses of the Interviewed
Employees.
The Court recognizes that several of the Defendants have
moved to dismiss this case for lack of personal jurisdiction, and all of
the Defendants have moved to transfer venue (d/e 98, 100, 102).
These motions put at issue whether this Court has jurisdiction over
them. Defendants Quincy Property, LLC, Brett Burge, Logan, and
Kearney, however, have answered the Third Amended Complaint.
Defendants’, Quincy Property, LLC, Brett Burge, Kenneth Logan, and
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Quentin Kearney, Answer to Plaintiffs’ Third Amended Complaint d/e
104). The three Defendants, at least, have submitted to the
jurisdiction of the Court. They shall insure that the names and
addresses of the Interviewed Employees are provided to the
Plaintiffs.
The Court will assess the costs to send this notice to the
Interviewed Employees after ruling on the pending Motions seeking
dismissal for lack of personal jurisdiction or transfer of venue of this
action. The jurisdictional issue must be resolved first because the
Court cannot assess costs over a party if it lacks jurisdiction. The
Court will not delay sending the notice because Defendants Quincy
Property, LLC, Burge, Logan, and Kearney have answered. The
case, therefore, will proceed at least against these Defendants.
The evidence also supports the conclusion that at least some
Interviewed Employees sensed an element of undue pressure in the
interviews. To some extent, an element of pressure inherently exists when
a supervisor interviews a subordinate employee. The declarations and
affidavits of Logan, Kearney, Schoen, and Smidt show that at least these
employees felt some undue pressure. Furthermore, the Form presented to
the employees contained the misleading statement in paragraph 12.
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Asking the employee to sign the Form with the misleading statement
created additional undue pressure. The Defendants asked Interviewed
Employees who may have been interested in opting into this action to sign
declarations that they were not interested in opting into this action. Such
Interviewed Employees either had to cross out the paragraph, decline to
sign, or lie and sign as is. An Interviewed Employee could feel significant
pressure to sign the document as is. The record demonstrates that
additional prophylactic measures are needed in future employee interviews
conducted by the Defendants.
The Defendants shall make prophylactic disclosures at the beginning
of any interviews with employees or former employees regarding this
action. The prophylactic statements will reduce the chance of coercion
without significantly affecting the Defendants’ rights to communicate with
possibly similarly situated employees. The Court finds that the preliminary
disclosures set forth in Camilotes v. Resurrection Health Care Corp., 2012
WL 245202, at *2 (N.D. Ill. Jan. 25, 2012), provide the type of prophylactic
disclosures that will reduce the risk of coercion in subsequent interviews in
this case. The following prophylactic disclosures are based on those in the
Camilotes case. The disclosures will be sufficient to protect employees in
subsequent interviews by the Defendants.
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[If person interviewed does not know the person
conducting the interview: My name is [ ] and I am [identify
relationship with the action]. Former employees have sued
[insert Name of Employer] claiming that they were owed
compensation for unpaid overtime and improper deductions
from their wages or salaries. These former employees are
seeking to bring their claims on behalf of certain current and
former employees who worked under similar conditions, which
includes you.
To help [insert Name of Employer] in defending this case,
I'd like to ask you some questions.
Before we begin, have you been contacted by any lawyer
about this case? [If so, did you agree to be represented by
counsel?] [Note—if they talked to counsel and are
represented by counsel, END the conversation.] [DO NOT
ASK WHAT THEY SPOKE ABOUT]
Please understand that you do not have to speak with me
or answer any of my questions about matters related to this
lawsuit. You can leave right now if you wish. Also, at any time
while we are talking, you can stop the interview and leave. Your
participation is completely voluntary.
Also, please understand that your job will not be affected
in any way because you decide to talk with me, or not to talk
with me. [insert Name of Employer] will not give you any
benefits or take any action against you. [insert Name of
Employer] will not do anything to affect your job, either
favorably or unfavorably, because of any answers you give to
my questions.
Do you understand what I have just explained? Do you
have any questions about what I have just told you? Is it all
right with you if we go ahead with the interview?

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If the employee states that he or she understands the disclosures and
agrees to go ahead with the interview, then the Defendants’ representative
may proceed with the interview.
Finally, the Defendants shall not present an employee for signature a
preprinted form declaration, affidavit, or other similar document (sworn or
unsworn) which purports to be a statement of fact on personal knowledge.
If the employee consents to an interview, the Defendants may conduct
interviews and prepare an individualized document summarizing or
memorializing the content of the employee’s statements at the interview.
The Defendants may ask the employee to sign such a document. If the
Defendants elect to do so, the Defendants must provide a copy of the
proposed statement to the employee to review. The Defendants must
allow each such employee sufficient time to read the document completely
and carefully. The Defendants must tell the employee that signing a
statement is voluntary and refusing to sign will not affect his or her
employment in any respect. The Defendant must then give the employee
24 hours to decide whether to sign. The Defendants are not required to let
the employee keep a copy of the document during the 24-hour period. If
the employee signs the statement, the Defendant must give the employee
a copy of the signed document.
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Defendants argue that the court should not enter a protective order.
Defendants argue that they properly exercised their right to speak to
employees about this action. They request an opportunity to conduct
discovery and an evidentiary hearing. The Court will not grant this request.
The submissions of the parties give the Court ample information to
determine the appropriate ruling.
Defendants liken their activities to the employer in the Camilotes
case. There are similarities, but also important differences. The
interviewers in Camilotes read clear written disclosures to the employees at
the beginning of the interviews. The interviewers also prepared
individualized declarations that the employees could elect to sign. The
Camilotes interviewers did not hand employees a preprinted declaration to
sign that stated that the employee had no interest in the action. The
interviewers also did not ask the employees to sign the declaration
immediately at the interview. The employer’s representative contacted the
employee later, sometimes more than a month later when they asked the
employee to read the declaration and sign. See Camilotes, 2012 WL
245202, at *2-*3. The process was much less rushed and the employer did
not hand the employee a preprinted form that said what the employer
wanted to hear.
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The Defendants’ Form paragraph 12 was misleading and the
interview techniques involved the use of undue pressure. The relief
ordered, therefore, is appropriate in this case. Defendants other arguments
to the contrary are not persuasive.
Plaintiffs ask the Court to grant additional remedies. Plaintiffs argue
that Defendants coerced Interviewed Employees with threats of eviction if
they did not sign the Form. Plaintiffs have failed to prove that Logan,
Kearney, or any other representative of the Defendants threatened anyone
with eviction. Schoen stated that she worried about being evicted, but she
did not state that Logan mentioned her housing or threatened any possible
eviction. Schoen’s subjective fear does not prove that Defendants used the
threat of eviction to coerce signatures on the Form. The Court will not
modify the corrective measures set forth in this Opinion based on Schoen’s
subjective fears.
Plaintiffs ask the Court to order Defendants to stop communicating
with current, former, and future employees about this action. Such an
absolute restraint on Defendants’ rights is not appropriate. The Defendants
have a right to talk to employees. The affidavits before the Court show
some risk of coercion, and paragraph 12 of the Form is misleading for the
reasons set forth above. The corrective notice, the disclaimers, and the
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prohibition against preprinted form declarations and similar documents is a
sufficient remedy in this case.
Plaintiffs ask the Court to enter a finding that waivers and settlements
are void. Private settlements of FLSA claims are void. Brooklyn Savings
Bank, 324 U.S. at 704-09. The law is settled. The Form declarations do
not contain express settlements or waivers so nothing needs to be declared
void. The corrective notice will dispel misconceptions that Interviewed
Employees might have after the Defendants’ interviews. Additional findings
are not necessary.
Plaintiffs ask for copies of the signed Declarations. Defendants state
that they have provided such copies to Plaintiffs. This request is therefore
moot.
Plaintiffs ask for face-to-face meetings between their counsel and all
of Defendants’ current employees at Defendants’ cost. The Court will not
grant this relief. Again, the relief provided is sufficient under the
circumstances.
Plaintiffs ask the Court to award Plaintiffs their costs and fees for
bringing this Motion. Awarding fees and costs for protective orders are
governed by Rule 37(a)(5). Fed. R. Civ. P. 26(c)(3), 37(a)(5). If the Court
grants part of the relief sought in a motion for protective order, the Court
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has the discretion to apportion reasonable expenses for the Motion. Fed.
R. Civ. P. 35(a)(5)(C). In this case, the Court in its discretion will not order
Defendants to pay Plaintiffs’ fees and costs. The Court in its discretion will
not award Plaintiffs fees and costs for bringing Motion 96.
THEREFORE, IT IS ORDERED that Plaintiffs’ Motion for Protective
Order (d/e 96) (Motion 96) is ALLOWED in part and DENIED in part. The
Plaintiffs shall file a proposed corrective notice in the form set forth in this
Opinion and provide a copy to all Defendants by October 10, 2017. The
Defendants shall provide Plaintiffs’ counsel the names and mailing
addresses of all Interviewed Employees (as that term is defined in this
Opinion) by October 10, 2017. The Court will review the proposed
corrective notice and, upon approval of a final corrective notice, authorize
its distribution by separate order. The Court will assess the costs of the
production and distribution of the protective order after the pending motions
to dismiss and to transfer venue (d/e 98, 100, 102) are resolved.
Defendants shall provide the disclosures set forth in this Opinion in any
subsequent interviews of current or former employees regarding this case.
Defendants shall not present to current or former employees, for signature,
any preprinted form that purports to be declarations, affidavits or

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statements of fact (sworn or unsworn) based on personal knowledge as
discussed in this Opinion. The Motion is otherwise denied.
ENTER: September 29, 2017

s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE

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