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Court: Mira Loma firm's wage & hour suit interviews too coercive

A Mira Loma warehouse operator that contracts out to Wal-Mart is facing a potential class-action wage and hour lawsuit over policies the employees say unfairly denied them overtime and violated their rights. Perhaps in an extremely misguided effort to be proactive, the company arranged to have the complaining employees brought in for interviews, supposedly for an internal investigation into working conditions at the firm.

Those interviews took place in the manager's office and with a company lawyer present. The friendly lawyer told the workers that the interviews were voluntary, although only five people declined to participate. The others complained they were coerced, and 106 of 120 signed sworn declarations as requested.

What the workers apparently weren't told was that the information they shared would and could be used against them in the wage and hour lawsuit. If they thought the interviews were protected by attorney-client privilege, they were sorely mistaken. The lawyer was there to protect the company's interests, not theirs.

Now, a federal judge has rebuked both the company and its legal team for engaging in impermissibly misleading and coercive tactics to gather those sworn declarations. None of the declarations can be used in court, and the company's lawyers may be referred for discipline.

The employees' complaint is that the company adopted an alternative workweek policy that scheduled the workers in such a way that denied them overtime pay. They plan to sue for that unpaid overtime and other violations of the Fair Labor Standards Act.

The company's lawyers may have violated two important professional conduct rules. First, if the lawsuit was already in progress, as it seems to have been, the attorneys should have known they were prohibited from contacting any employee-adversary outside the presence of his or her own lawyer.

Second, the California Rules of Professional Conduct require workers to be clearly told that company lawyers will promote the company's interests -- not the workers' -- should those interests diverge.

"While the deceptive nature of the interviews is sufficient to support a finding that improper communications have taken place," the federal judge wrote, "the Court also finds that the interviews were impermissibly coercive." Furthermore, he said, the "interviewing attorney's grant of permission to leave did little to dispel the aura of coercion."

The company and its lawyers are not prohibited from communicating with any potential class members without obtaining written permission from the court.

"We hope this will send a message to Schneider's employees that they will not be retaliated against if they would like to provide evidence," said a lawyer representing the workers.

Source: Thomson Reuters News & Insight, "Warehouse operator coerced employees in wage case, judge says," Amanda Becker, March 29, 2013

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