Aware that the more information putative class members are required to provide, the less likely they are to opt in to the case by submitting a consent to join, it is not unusual for FLSA defendants to request that putative class members provide information above and beyond the simple consent to join required by 216(b) as a prerequisite to joining a case. Two recent opinions joined the majority of courts and rejected such requests, in recognition of the chilling effect they can have on employee participation.

N.D. Cal.: Defendant’s Request to Require Class Members to Provide Dates of Employment Rejected

Ash v. Bayside Solutions, Inc.

In the first case, the defendants asserted that any employee who wished to opt-in should be required to provide his or her dates of employment. Rejecting this request, the court reasoned:

Bayside argues that opt-in plaintiffs should be required to provide their actual dates of employment on the opt-in form included with the proposed notice. Plaintiffs respond that Bayside will provide this information when it produces a list of potential collective action members and there is no reason for potential plaintiffs themselves to provide it. I agree with plaintiffs and DENY this request. See, e.g., Flores v. Velocity Exp., Inc., No. 12–cv–05790–JST, 2013 WL 2468362, at *9 (N.D. Cal. June 7, 2013) (“the Court sees no reason why Velocity’s former and current delivery drivers should identify their dates of service on their opt-in forms. As set forth above, Velocity will be producing this information to Plaintiffs”).

Click Ash v. Bayside Solutions, Inc. to read the entire Order.

E.D.Tenn.: Defendant’s Request That Notice Package Include Detailed Questionnaire Rejected

Pierce v. Wyndham Vacation Resorts, Inc.

In the second case, the defendant went even further, and requested that each employee who elected to opt-in be required to fill out an entire Questionnaire. Again, the court rejected this request and explained:

Generally, an initial mailing regarding an FLSA collective action includes: (1) a notice, advising the potential litigant of his or her ability to join the suit and (2) an opt-in form, which the potential litigant can use to join the suit. Wyndham has proposed that in this case a third document be included in the mailing: a six-page questionnaire, which from its introductory language appears to be mandatory.

The court explained the parties’ respective positions as follows:

Wyndham acknowledges that such questionnaires are not common-place, but Wyndham maintains that they have been used by courts in other cases. Wyndham argues that the use of the questionnaire may streamline litigation and enable it to craft its decertification motion.

The Plaintiffs have responded by asserting that the relief requested by Wyndham is extraordinary and amounts to permitting discovery prior to a potential litigant becoming a party to this suit. The Plaintiffs maintain that the requirement that the opt-in plaintiffs complete the questionnaire, without consultation of counsel, prior to joining the suit would discourage participation and be inconsistent with 29 U.S.C. § 216 and the Federal Rules of Civil Procedure.

Rejecting the defendant’s request to include the detailed questionnaire in the notice package, the court explained:

The Court has thoroughly considered the parties’ positions and the applicable case law on this issue. At the hearing, Wyndham’s counsel relied heavily upon Rosenberg v. University of Cincinnati, 118 F.R.D. 591 (S.D.Ohio 1987), which he argued supported Wyndham’s position that obtaining discovery before a litigant opts in is acceptable. Initially, the Court Finds that Wyndham’s reliance on an almost thirty-year-old case indicates that the use of the questionnaires is not as common place as Wyndham would have the Court believe. Second, the Court finds that Rosenberg devoted almost no discussion to the issue before the Court. The court in Rosenberg addressed the defendant’s motion to decertify a class of female faculty members. Id. at 591–96. The only mention of a questionnaire in Rosenberg is in the court’s description of the case’s procedural posture and its rulings, id. at 491–92, and where the court explained the procedure for decertifying the class, stating:

In the present case, on Defendants’ motion (Doc. # 60), notice of the class action was sent to women employed in faculty positions at the University of Cincinnati at any time between July 15, 1974 and December 15, 1977 by the Plaintiff. See Doc. # 66. Answered questionnaires which accompanied that notice were to be returned to the Clerk of Courts. See Entry of April 23, 1981 (Doc. # 65). Accordingly, because members of the former class who returned the questionnaires received notice of the initial class certification and may have relied upon being included in that class, the Court hereby orders that the Clerk of Courts send the notice of the decertification of this class action attached hereto to all individuals who returned the questionnaire by ordinary mail.  Id. at 596–97. This Court cannot find that this factual statement about a questionnaire having been sent, without any discussion of the particular circumstances of the case and the basis for sending the questionnaire, is persuasive authority in the instant case.

Instead, the Court finds the well-reasoned opinion in McCarthy v. Paine Webber Group, Inc., 164 F.R.D. 309 (D.Conn.1995), which directly addresses whether a questionnaire could be sent to potential class members, to be persuasive on this issue. The court in McCarthy reasoned that requiring potential class members to complete a form during the initial notice stage was contrary to Rule 23 of the Federal Rules of Civil Procedure. Id. at 313. This Court finds that the questionnaire proposed here would constitute an equally unacceptable condition precedent to joining the collective action, which is not consistent with 29 U.S.C. § 216.

The Court finds that the questions proposed by Wyndham are inappropriate. For example, Wyndham asks the opt-in plaintiffs to state every date on which the person failed to clock-in on time and the amount of time that was worked but underreported. Similarly, the questionnaire calls upon the opt-in plaintiffs to state every time that they were underpaid, who underpaid them, and the amount by which they were underpaid. Ordering an opt-in plaintiff to answer such questions without counsel and prior to joining this suit would be contrary to Rule 26 of the Federal Rules of Civil Procedure and unfair to the litigant. Moreover, questions like whether the person is currently employed by Wyndham and their prior positions with Wyndham can easily be answered by Wyndham itself once the opt-in form is received, without need for the opt-in plaintiff to provide such information through a questionnaire. Finally, the Court finds that the twenty questions, with multiple sub-parts, proposed by Wyndham are unduly burdensome given that discovery has not yet commenced in this case.

The Court also finds that the questionnaire takes an unacceptably harsh tone in threatening that incorrect or incomplete answers may constitute perjury or have a preclusive effect. The questionnaire states: “Please answer the following questions fully and completely to the best of your knowledge. If a full and complete answer will not fit in the space provided, you must be sure to add additional pages, as necessary, to ensure a full and complete answer.” [Doc. 89–1 at 8]. The questionnaire concludes by stating, “Pursuant to 28 U.S.C. § 1746, I hereby declare under penalty of perjury that the foregoing is true and correct.” [Id. at 13]. The Court finds that these warnings and the threat of penalty of perjury are unacceptable in this case, where Wyndham proposes that these questions be answered without the benefit of advice of counsel and prior to complying with Rule 26 of the Federal Rules of Civil Procedure. At the hearing, counsel for Wyndham could not cite the Court to any case law supporting the service of such a questionnaire with threat of penalty of perjury.

For these reasons, the court denied the defendant’s request in this regard.

Click Pierce v. Wyndham Vacation Resorts, Inc. to read the entire Memorandum and Order.