Corporate defense lawyers are sharpening their knives in light of the Supreme Court’s recent opinion in Genesis Healthcare v. Symczyk. And, while there is still some debate as to the long-term implications of the case due to procedural issues regarding the way it came to the high court, the majority opinion in Genesis seemed to clearly indicate a willingness to allow companies to thwart employees’ FLSA overtime collective actions by simply offering the lead plaintiff(s) the entire amount that they were owed. This would allow companies to crush FLSA collective actions before they get started, get away with wage theft from employees who would have otherwise eventually joined the action, and potentially keep millions of dollars in ill-gotten gains. More importantly, it has the potential of making collective actions so difficult to prosecute that lawyers will stop taking the cases altogether and the FLSA will effectively go the way of the dodo.
Not bad for a day’s work at the highest court in the land.
And predictably, corporate defense lawyers are already discussing the best ways to "pick off" FLSA plaintiffs. Jon Hyman of Ohio Employer’s Law Blog writes:
There is nothing inherently unethical in defense counsel contacting putative class members at the pre-certification stage. According to ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 07-445 (2007), communications between defense counsel and putative class members does not violate the Models Rules of Professional Responsibility because there is no attorney-client relationship between plaintiffs’ counsel and members of an un-certified, putative class.
Yet, a court still might limit such communications if they are designed to confuse or coerce.
Protip: Whenever a lawyer says "nothing inherently unethical," that’s where the horse is buried.
Everything Jon writes in his post is perfectly true. And he is correct to point out that courts in the past have been reluctant to interfere with such communications absent smoking gun evidence of malicious intent and abuse. However, given that confusing and coercing potential class members is in reality the primary reason for any such contact, the courts certainly will need to do a better job limiting such conduct after the Genesis decision than they have done in the past.