MADDY et al v. GENERAL ELECTRIC COMPANY
OPINION. Signed by Judge Joseph E. Irenas on 3/23/2015. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DONALD MADDY, KURT FREDRICK,
FREDRICK R. SHELLHAMMER, III,
FRANK MICHIENZI, MARIO
LAUREANO, ANOTHONY CHELPATY,
WILLIAM MADDEN, STEVEN LE
BLANC, JEFFREY SCOTT WILKERSON,
JEFFREY NACARETTE, PHILLIP ERIC
BENSON, BRADLEY PALMER, THOMAS
KISS, Individually, and on
behalf of all others similarly
GENERAL ELECTRIC COMPANY, a New
SWARTZ SWIDLER, LLC
By: Justin L. Swidler, Esq.
Richard S. Swartz, Esq.
1878 Marlton Pike East, Ste. 10
Cherry Hill, New Jersey, 08003
ROBERT D. SOLOFF, P.A.
By: Robert D. Soloff, Esq.
7805 S.W. 6th Court
Plantation, Florida 33324
By: Allen Eichenbaum, Esq.
10059 Northwest 1st Court
Plantation, Florida 33324
Counsel for Plaintiffs
HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 14-0490
LITTLER MENDELSON, P.C.
By: Nina Markey, Esq.
Rachel Fendell Satinsky, Esq.
Aaron Reed, Esq. (pro hac vice)
Daniel B. Boatright, Esq. (pro hac vice)
1601 Cherry Street, Suite 1400
Philadelphia, Pennsylvania 19102
Counsel for Defendant General Electric Company
IRENAS, Senior District Judge:
Plaintiffs, service technicians working for the General
Electric Company (“GE” or “Defendant”), brought this putative
collective action pursuant to § 216(b) of the Fair Labor
Standards Act (“FLSA”) to recover allegedly unpaid overtime
compensation from Defendant.
Pending before the Court is Plaintiffs’ Letter Brief
Seeking to Facilitate Curative Notice and Enjoin Defendants from
Further Interfering with Court-Facilitated Notice.
For the reasons explained herein, Plaintiffs’ request is
GRANTED in part.
This putative collective action rests on Plaintiffs’
allegations that service technicians in GE’s Appliances Division
routinely, and with Defendant’s knowledge, performed work “off
The Court sets out the underlying facts of the case in detail in its Opinion
granting Plaintiffs’ prior motion to conditionally certify this collective
action. See Maddy v. General Elec. Co., No. 14-490 (JEI/KMW), 2014 WL
5934114 (D.N.J. Nov. 14, 2014). The Court repeats only those facts relevant
to the present motion.
the clock” in order to satisfy daily revenue requirements.
one of their principal claims, Plaintiffs assert that service
technicians, at Defendant’s direction, must log into their
computers each morning to obtain their first customer calls and
prepare for the day, but that Defendant has not compensated
Plaintiffs for such work.
The Court preliminarily certified this matter as a
collective action on November 14, 2014, and, following the
provision of court-facilitated notice to all putative class
members, a ninety-day opt-in period began on January 28, 2015.
Less than one month later, on February 23, 2015, Customer
Service Manager (“CSM”) Vince Guida, who supervises Southern
California Region service technicians, sent an email to his
technicians with the subject heading “Time worked and time
reporting – MUST READ.”
(Ex. 1-C to Pls.’ Ltr.)
states, in relevant part,
Over the past years, multiple emails have been sent,
PowerPoint presentations shared, and during tech
meetings I have stressed the importance of the Company’s
It is imperative that you
understand there is to be absolutely NO GE work performed
off the clock. Any time spent performing GE work needs
to be reported on your timecard. This includes, but is
not limited to, sending work related emails before you
start your work day or after you end your work day, as
well as accessing GE Systems such as TPTP to conduct any
GE work. If you have to do work related tasks before
your start time or after your start time, you are
required to request approval from me in advance, and
then once approved, the time must be added to your time
. . .
So there is no misunderstanding, the above should be
considered direct work instruction and failure to abide
insubordination, a category 2 work rule violation, and
discipline will ensue – up to and including termination.
. . .
Use of the company laptop
You may look at your route prior to departing your home
in order to know where your first stop will be. However,
as stated in Paragraph 1 above, you should not be
accessing TPTP for any other purpose outside your
workday. Should you perform company work, it must be
Defendant claims that Mr. Guida sent this email as part of
the ordinary course of business following annual “Fast Start”
presentations held less than two weeks earlier during which he
reviewed timekeeping policies and procedures.
(Def.’s Opp. at
In a Declaration submitted on behalf of Defendant, Mr. Guida
states that he often sends “various follow up emails after the
Fast Start meetings regarding relevant rules, policies and
(Guida Decl., Ex. 1 to Def.’s Opp., at ¶ 5)
Guida attaches a virtually identical May 13, 2014, email from
which he cut and pasted the majority of the February 23, 2015,
(5/13/2014 email, Ex. 1-A to Def.’s Opp.)
refers to the February 2015 and May 2014 communications as
(Guida Decl. ¶¶ 6-9)
Plaintiffs submitted a letter brief to the Court on March
4, 2015, arguing that Mr. Guida’s February 2015 email
constitutes an “improper and coercive” communication meant to
deter participation in the pending lawsuit.
As a remedy,
Plaintiffs ask the Court for an order (1) requiring Defendant to
send a curative notice to all service technicians, and (2)
prohibiting Defendant and its managers from sending similar mass
communications concerning timekeeping to putative class members
for the duration of the opt-in period.
Defendant filed its
opposition to Plaintiffs’ request and the Court held oral
argument on March 17, 2015.
Federal courts have generally held that defendants in §
216(b) actions are not barred from communicating with
prospective opt-in plaintiffs.
See Bobryk v. Durand Glass Mfg.
Co., Inc., No. 12-CV-5360 (NLH/JS), 2013 WL 5574504, at *4 (Oct.
9, 2013) (“[T]here is no bright-line rule barring a defendant
from speaking with putative class members.”); Longcrier v. HL–A
Co., Inc., 595 F. Supp. 2d 1218, 1225 (S.D. Ala. 2008) (“As a
general matter, employers are free to communicate with
unrepresented prospective class members about the lawsuit and
even to solicit affidavits from them concerning the subject
matter of the suit”); Parks v. Eastwood Ins. Servs., Inc., 235
F. Supp. 2d 1082, 1084 (C.D. Cal. 2002) (“The law is not settled
on this issue, but the majority view seems to be against a ban
on pre-certification communication between Defendant and
potential class members.”).
However, district courts have the authority to limit
communications between parties and prospective class members.
See Gulf Oil, Co. v. Bernard, 452 U.S. 89 (1981).
In Gulf Oil,
the Supreme Court held that “an order limiting communications
between parties and potential class members should be based 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.”2
Id. at 100.
To warrant a
limitation on communications between a defendant and putative
class members, “the plaintiff must show (1) that a particular
form of communication has occurred or is threatened to occur and
(2) that the particular form of communication at issue is
abusive in that it threatens the proper functioning of the
Bobryk, 2013 WL 5574504, at *4 (internal
“Courts have ordered a variety of remedial measures for
misleading and improper communications, including prohibiting
This Court has held that prospective plaintiffs in a FLSA action are, like
pre-certification plaintiffs in Rule 23 class actions, still “unrepresented
parties.” Bobryk, 2013 WL 5574504, at *4.
further ex parte communications, issuing corrective notices,
[and] extending the opt-in period.”
Stransky v. HealthONE of
Denver, Inc., 929 F. Supp. 2d 1100, 1109 (D. Colo. 2013).
The Court will grant Plaintiffs’ request for an order
requiring curative notice, limited to Southern California
service technicians, because the February 23, 2015, email (1)
takes a legal position on the definition of compensable “work,”
and (2) threatens discipline, up to and including termination,
for the activity to which GE’s service technicians would
necessarily admit by joining the collective action.
the Court will not prohibit Defendant from communicating with
putative class members for the duration of the opt-in period.
Defendant emphasizes that Mr. Guida’s email does not
mention the instant litigation and that there is no evidence
that Mr. Guida sent the email with the purpose of deterring his
technicians from opting into the lawsuit.
Pointing to Mr.
Guida’s May 2014 and August/September 2013 emails to service
technicians concerning timekeeping policies and procedures,
Defendant portrays the February 2015 email as part of the
regular course of business.
Plaintiffs concede that the email does not reference the
litigation specifically, but argue that the email’s timing
demonstrates an aim to scare putative class members and reduce
participation in the suit.
During oral argument, Plaintiffs
stated that they would not have taken issue with the email had
Defendant sent it in May, just like Mr. Guida’s virtually
identical 2014 “reminder email.”
However, the fact that Mr.
Guida sent the email between the initial notice and the reminder
notice, scheduled for March 13, 2015, suggests that this
litigation acted as the catalyst for that communication.
The opt-in period is a sensitive time in a FLSA litigation.
Although the coercive nature of the employment relationship is
insufficient on its own to warrant a limitation on an employer’s
ability to communicate directly with putative class members,
courts should intervene when those communications address the
particular employment issues implicated in the pending lawsuit
in a misleading manner that would discourage a reasonable
employee from opting into the litigation.
Here, Mr. Guida’s
email categorically defines the kind of activity for which
Plaintiffs seek compensation in this litigation as noncompensable.
A lay reader would interpret the email’s language
regarding discipline for “off the clock” work, though framed in
the future tense (“failure to abide by these instructions will
be considered insubordination”), as applying to past “off the
clock” work as well.
For these reasons, service technicians who
received this email would reasonably believe that opting into
the litigation was pointless based on the definition of “work,”
or, worse, that they would risk their jobs by admitting to that
kind of activity, a necessary consequence of opting-in.
Mr. Guida’s email may mirror earlier messages to service
technicians about timekeeping and address some topics not at
issue in this case, but these facts do not necessarily foreclose
a finding that the email, when Mr. Guida sent it, threatened the
proper functioning of the litigation.
Further, Defendant does
not explain why Mr. Guida sent the similar 2014 email in May,
but the 2015 email three months earlier.3
It concerns the Court
that Defendant has been emphasizing timekeeping policies, and
the harsh consequences for not following them, more frequently
during this relatively short opt-in window without any other
stated intervening cause.
In order to correct any potential confusion as to the
viability of the claims in this litigation and the consequences
of opting-in, the Court will grant Plaintiffs’ request for an
order requiring Defendant to send a curative notice, but limits
the notice to the Southern California Region service technicians
who received Mr. Guida’s February 23, 2015 email.
There is some confusion with regards to the purpose of the email that forces
the Court to question its timing. Defendant suggests that the February 23,
2015 email was a “follow-up” to the Fast Start meeting. However, Mr. Guida
states in his Declaration that, while there were indeed other follow-up
emails to the meeting, the February 23, 2015 email, like the May 2014 message
was simply a periodic “reminder email.” (Guida Decl. ¶¶ 8-9)
shall state, in part, that no service technicians will be
subject to discipline if they opt into the lawsuit for working
“off the clock” during this case’s class period.4
the Court will extend the opt-in period for Southern California
Region service technicians for thirty (30) days from the current
April 28, 2015, deadline to May 28, 2015.
The curative notice
shall reflect this extension of the opt-in period as well.
Last, for the duration of the opt-in period, Defendant shall
submit to the Court copies of all further communications between
Defendant and members of the putative class concerning
timekeeping policies and procedures within one week following
Importantly, the Court does not hold that Defendant cannot
communicate with its employees about timekeeping.
recognizes the First Amendment concerns raised in limiting an
employer’s ability to communicate with its employees and has
tailored the above-described remedy so as to avoid placing a
prior restraint on Defendant’s speech.
This decision merely
requires Defendant to account for a particularly problematic
email and creates a monitoring system for the remainder of the
Based on the notice sent to potential class members, the class period runs
from January 23, 2011, to January 28, 2015 (the original notice date).
(Notice, Ex. 1-B to Pls.’ Ltr.)
For the reasons set forth above and in the manner described
herein, the Court will GRANT Plaintiff’s motion in part.
appropriate Order accompanies this Opinion.
Date: March 23, 2015
s/ Joseph E. Irenas
Joseph E. Irenas, S.U.S.D.J.
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