The California Labor Code Private Attorneys General Act of 2004 (PAGA) allows employees in California to sue on behalf of the State of California over violations of the California Labor Code. PAGA allows an employee to bring a representative action on behalf of other "aggrieved" employees – essentially allowing an employee to bring the equivalent of a class action without having to take the steps needed to bring a class action. An ongoing issue in PAGA cases is if plaintiffs must show that they are "aggrieved" before pursuing discovery about employees working in other locations. In other words, whether they must show that there is underlying merit to the case (particularly with regard to whether such violations are occurring outside of the location where the plaintiff worked) before seeking information about employees on a statewide basis. Some courts have required it, while others have not.
On July 13, 2017, the California Supreme Court unanimously settled the issue in Williams v. Superior Court (Marshalls of CA, LLC), S227228 (July 13, 2017) on the employees' side, holding that employees do not have to demonstrate any sort of good cause or underlying merit to their cases before they may seek the names and contact information of other employees in PAGA cases.
Facts and Appellate History of Case
Michael Williams sued his employer, Marshalls, a department store with approximately 130 stores in California, for PAGA penalties associated with alleged wage-and-hour violations, including failure to provide meal and rest breaks and failure to provide accurate and timely wage statements. He sought these penalties on a per-pay-period basis on behalf of himself and all other allegedly aggrieved employees.
In initial discovery, he asked Marshalls to provide the names and contact information for the more than 16,500 employees working in all of Marshalls' other California stores, whom Williams purported to represent. Marshalls objected on the grounds that the request was overbroad, unduly burdensome and violated the privacy rights of the other employees. The trial court judge allowed Williams to obtain the information for the employees who worked at the same location he did, but not any other stores. Williams would only be allowed to obtain such information about employees at other locations if, after his deposition, he could show that his claims had merit. Williams appealed, arguing that he should have access to this information from the beginning of the lawsuit. The Court of Appeal affirmed the trial court decision, holding that Williams must set forth specific facts showing good cause justifying the production of the names and contact information of over 16,500 people. For example, Williams would have to show actual support for his claim that the violations he alleged were occurring on a statewide basis, rather than just at the store where he worked, before he could seek such information about other employees.
Williams appealed to the California Supreme Court, arguing that requiring Williams to sit for deposition prior to seeking discovery put him at an unfair disadvantage and that it gave Marshalls the upper hand in the case. Marshalls, in its response, argued that allowing such discovery early in the litigation, without requiring a showing of underlying merit to the case, would place an undue burden on employers and pressure them to settle otherwise meritless cases in order to avoid the cost of producing such information.
Supreme Court Ruling
The California Supreme Court rejected the lower court holdings that limited an employee's ability to secure statewide employee contact and employment information in a representative PAGA action, when the plaintiff only worked in one of the employer's stores. The Court found Williams was "presumptively entitled to an answer to his interrogatory seeking the identity and contact information of his fellow Marshalls employees." The Court noted that nothing in the language of PAGA or in other discovery laws require a litigant to make a heightened showing of need in order to conduct discovery, and that courts should not create one.
Burden on Employers Not Enough to Prevent Discovery
The Court held that while individual cases may present a basis "to limit or postpone" a representative plaintiff's receipt of contact information, "the default position" is that such information may be sought immediately. The Court also rejected Marshalls' argument that providing information for approximately 16,500 employees was burdensome in and of itself; without detailing how producing that information would actually be burdensome (in terms of cost or time required), since an employer will presumptively be required to provide it in response to a discovery request for the same.
Employee Privacy Rights Do Not Trump Plaintiffs' Rights to Conduct Discovery, Potentially Making the Holding Broader Than Intended
Not only did the Court hold that the burden on employers would not be enough to stop the production of such information, it also held that the privacy rights of employees who were not involved in the lawsuit did not prohibit a plaintiff from seeking such information. The Court found that employees do not have a reasonable expectation of their names and contact information being kept private in the event of wage and hour litigation, nor is their disclosure in litigation a serious invasion of privacy. The Court disapproved a long line of California case law that has held that plaintiffs must establish a compelling need for such information. The Court held, "To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need ... they are disapproved." In other words, an employee's expectation of privacy alone is not enough to prevent discovery of such information. This potentially makes the Williams case more broad in its implications, as any litigant seeking information about other employees in any other type of employment case may be able to rely on this precedent.
What This Means for Employers
Employers facing PAGA claims will likely be asked to provide the names and contact information for all other allegedly "aggrieved" employees at the start of litigation as a matter of course, which may increase the costs of litigation early in the case. It may also alert other employees to problems, real or imagined, with wage-and-hour issues with the company and lead to additional claims.
Another, more serious implication of this case is that it might allow litigants and their attorneys to conduct "fishing expeditions" in discovery. If a potential plaintiff's claims are not meritorious, the plaintiff's attorneys could try to find another person to represent a claim by using the names and contact information for employees.
Employers still have options when facing PAGA claims. Employers can make a showing of an undue burden with regard to providing the information sought, particularly early in a case. This showing will likely require actual evidence, rather than simply making a discovery objection. Furthermore, employers can require litigants to participate in a Belaire-West process, which would allow employees to opt out of having their information provided in a lawsuit prior to it being produced.
To minimize the risk of PAGA claims being brought in the first place, employers should ensure that they protect employee privacy and comply with all state wage-and-hour laws, including wage statements and meal and rest break laws.
If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are in regular contact.
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