Acosta

Case 2:16-cv-04547-FMO-AGR Document 203 Filed 02/20/18 Page 1 of 11 Page ID
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

Case No. CV 16-4547 FMO (AGRx) Date February 20, 2018
Title Alexander Acosta, Secretary of Labor, United States Department of Labor
v. Southwest Fuel Management, Inc., et al.
Present: The Honorable Fernando M. Olguin, United States District Judge

Vanessa Figueroa None None
Deputy Clerk Court Reporter / Recorder Tape No.
Attorney Present for Plaintiff(s): Attorney Present for Defendant(s):
None Present None Present
Proceedings: (In Chambers) Order Re: Notice to Employees and Further
Proceedings
Having considered the briefing filed with respect to defendants’ Response to the Court’s
February 2, 2018 Order to Show Cause Why A Preliminary Injunction Should Not Issue, (Dkt. 192,
“Response”), and the oral argument presented to the court on February 13, 2018, the court
concludes as follows.1
“The caselaw nearly universally observes that employer-employee contact is particularly

prone to coercion[.]” Camp v. Alexander, 300 F.R.D. 617, 624 (N.D. Cal. 2014); Bublitz v. E.I.
duPont de Nemours and Co., 196 F.R.D. 545, 548 (S.D. Iowa 2000) (“Where the defendant is the
current employer of putative class members who are at-will employees, the risk of coercion is
particularly high; indeed, there may in fact be some inherent coercion in such a situation. This
Court is not the first to recognize this.”).2 In its Order Granting Temporary Restraining Order and
Issuing Order to Show Cause (“Court’s Order of February 2, 2018”), the court found that there was
inherent, if not actual, coercion in the interviews and collecting of declarations from defendants’
employees by defendants and their counsel. (See Dkt. 190, Court’s Order of February 2, 2018,
at 8-13). Defendants’ evidence, in response to the Court’s Order of February 2, 2018, consists
of self-serving declarations from their attorneys and a corporate manager, who was previously the
1
To the extent that there is any conflict between this order and what was said or ordered
during the hearing, this Order controls.
2
Courts have applied the standards and protections from the class action context to
collective actions under the Fair Labor Standards Act (“FLSA”). See, e.g., Zamboni v. Pepe W.
48th St. LLC, 2013 WL 978935, *2 (S.D.N.Y. 2013) (“The same principles that govern
communications with putative class members in a class action under Rule 23 also apply to
communications with potential opt-in plaintiffs in a collective action brought under the FLSA.”);
Hamm v. TBC Corp., 597 F.Supp.2d 1338, 1351 (S.D. Fla. 2009), aff’d, 345 F.Appx. 406 (11th Cir.
2009) (applying Gulf Oil standards in FLSA action).
CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 11
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manager of four of defendants’ car washes, claiming that the interviews and their conduct in
collecting declarations from employees were not coercive. (See, generally, Dkt. 192-2,
Declaration of Rebecca M. Aragon (“Aragon Decl.”); Dkt. 192-3, Declaration of Steven Zarate
(“Zarate Decl.”); Dkt. 192-4, Declaration of Mel M.C. Cole (“Cole Decl.”); Dkt. 192-5, Declaration
of Debra Urteaga (“Urteaga Decl.”); Dkt. 192-6, Declaration of Alex Santana (“Santana Decl.”);
Dkt. 192-7, Declaration of Hector J. Rodriguez (“Rodriguez Decl.”)). Defendants’ evidence does
little to undermine the court’s conclusion that the coercive nature of the conduct at issue rendered
defendants’ communications with its employees improper.3
In other words, the court is persuaded that the Secretary of the United States Department
of Labor (“plaintiff” or “the Secretary”) put forth sufficient evidence4 that the interviews and
gathering of declarations from defendants’ employees was inherently, if not actually, coercive and
misleading. See Zamboni, 2013 WL 978935, at *3 (“In some circumstances where there is an
ongoing and unequal business or employment relationship between the parties, communications
may be deemed inherently coercive.”); Abdallah v. Coca-Cola Co., 186 F.R.D. 672, 678 (N.D. Ga.
1999) (Defendant “has not given the Court any reason to suspect that it will attempt to mislead its
employees and coerce them into non-participation in this case. But simple reality suggests that
the danger of coercion is real and justifies the imposition of limitations on [defendant’s]
communications with potential class members.”); Camp, 300 F.R.D. at 625–26 (“Although
Defendants here presented the opt-out declarations via non-management staff, not in one-on-one
meetings between managers and putative class members, there is still a significant power
imbalance between an employer and its employees.”); see also Ohralik v. Ohio State Bar Assoc.,
436 U.S. 447, 457, 98 S.Ct. 1912, 1919 (1978) (“[I]n-person solicitation may exert pressure and
often demands an immediate response, without providing an opportunity for comparison or
reflection. The aim and effect of in-person solicitation may be to provide a one-sided presentation
and to encourage speedy and perhaps uninformed decisionmaking; there is no opportunity for
intervention or counter-education[.]”) (footnote omitted). For example, employees were instructed
3
Even some of the evidence submitted by defendants suggests that the interviews may
have been coercive. For example, one of the declarations submitted by defendants states that
“one female employee . . . began to cry” during the interview, at which point defendants’ counsel
“told her that she may leave[.]” (See Dkt. 192-2, Aragon Decl. at ¶ 11).
4
Although defendants object to the Secretary’s proffered evidence as hearsay, it is “within
the discretion of the district court to accept this hearsay for purposes of deciding whether to issue
[a] preliminary injunction.” Republic of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir.
1988) (en banc); see also Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003), cert. denied,
541 U.S. 937 (2004) (holding that district court properly considered a diary which defendants
moved to strike as inadmissible hearsay because “[a]t the summary judgment stage, we do not
focus on the admissibility of the evidence’s form. We focus instead on the admissibility of its
contents.”).
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by Steven Zarate (“Zarate”), a current management level employee who managed at least four
car washes during the relevant time period, (see Dkt. 192-3, Zarate Decl. at ¶¶ 1-4), to attend
meetings with defense counsel on work time, to “sign papers” or provide a declaration, and some
employees were even driven to the meetings by Zarate or other company representatives. (See
Dkt. 196-2, Declaration of Jean Lui (“Lui Decl.”) ¶ 5; Dkt. 184-11, Declaration of Patricia Gatica
(“Gatica Decl.”) at ¶ 5; Dkt. 184-12, Declaration of Maribel M. Tapia at ¶ 5; Dkt. 184-13,
Declaration of Claudia R. Cotne-Martinez (“Cotne-Martinez Decl.”) at ¶ 5); see also Quezada v.
Schneider Logistics Transloading & Distribution, 2013 WL 1296761, *6 (C.D. Cal. 2013) (“[T]he
Court also finds that the interviews were impermissibly coercive[.] . . . Defendant contends that
the meetings were nonetheless not coercive because the employees were properly notified of the
voluntary nature of the meetings. This notice was hardly sufficient, however, because the
employees were ordered to attend the meetings [by company managers or over a loudspeaker],
and it was therefore confusing and slightly self-contradictory for [defendant’s] lawyers to inform
the employees that their presence at the interviews was voluntary.”) (internal quotation marks,
alterations, and citations omitted); Perez v. Blue Mountain Farms, 961 F.Supp.2d 1164, 1171 (E.D.
Wash. 2013) (“the interviews that have occurred may have been tainted by the presence of
supervisors and video cameras”). As one employee told a Department of Labor investigator, “the
attorney called [the employee] into the office, closed the door, and began talking. The attorney
did not tell him that the meeting was voluntary. He was not told that the U.S. Department of Labor
had determined that he was owed back wages and that by signing a statement the employee
might be giving up these wages. The attorney presented him with a declaration to sign. The
employee . . . signed it because he felt he would lose his job or have his hours cut if he did not
sign.” (Dkt. 196-2, Lui Decl. at ¶ 9). Other employees came forward with similar testimony. (See
id. at ¶¶ 5-7, 10; Dkt. 184-11, Gatica Decl. at ¶¶ 5-6; Dkt. 184-13, Cotne-Martinez Decl. at ¶ 10).
Indeed, one employee stated that the testimony in his declaration is false or, at a minimum,
misleading. (See, e.g., Dkt. 196-2, Lui Decl. at ¶ 7) (declaration stated “the employee never had
to wait to clock in” but employee told investigator that currently he did have to wait to clock in and
counsel did not ask about the past).
Also, some employees indicated that they were not given key information about the lawsuit,
such as the time period it covered.5 (See Dkt. 196-2, Lui Decl. at ¶¶ 6-7, 9; Dkt. 184-11, Gatica
Decl. at ¶ 5; Dkt. 184-13, Cotne-Martinez Decl. at ¶¶ 5, 10). In addition to the coercive
circumstances surrounding the interviews and gathering of declarations, defendants’ “failure to
provide sufficient information relating to [the Secretary’s and the employees’] claims so that the
employees could make an informed decision” raises serious concerns as to whether the employee
declarants were misled and/or whether the employees voluntarily and intelligently understood and
agreed to sign the consent forms and declarations. See Gonzalez v. Preferred Freezer Servs.
5
None of defendants’ declarations indicate whether the employees were advised as to the
temporal scope of the lawsuit. (See, generally, Dkt. 192-2, Aragon Decl.; Dkt. 192-4, Cole Decl.;
Dkt. 192-5, Urteaga Decl.; Dkt. 192-6, Santana Decl.; Dkt. 192-7, Rodriguez Decl.).
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LBF, LLC, 2012 WL 4466605, *2 (C.D. Cal. 2012) (“Omission of important information relating to
a plaintiff’s case or claims is misleading.”); Sjoblom v. Charter Comm’ns, LLC, 2007 WL 5314916,
*3 (W.D. Wis. 2007) (sanctioning employer who obtained affidavits from potential FLSA class
members in “blitz campaign” that included a consent form describing litigation but failing to “notify
them that they might be entitled to become a part of the lawsuit”). Finally, defendants’ assertion
that had employees asked for copies of the consent forms and declarations they would have been
provided with them, (see, e.g., Dkt. 192-7, Rodriguez Decl. at ¶ 19; see also Dkt. 192, Response
at 7), strains credulity and is further evidence of the coercive nature of defendants’ conduct. See,
e.g., Guifi Li v. A Perfect Day Franchise, Inc., 270 F.R.D. 509, 518 (N.D. Cal. 2010) (in concluding
that meetings with employees “were inherently coercive[,]” court considered the failure “to provide
copies of the opt-out forms to workers to take away with them”). The court is troubled as to why
defendants or defense counsel did not simply – without waiting for the employee to request a copy
– provide the employee with a copy of the consent form and the declaration he or she signed.6
Considering that the employees signed the declarations under penalty of perjury, (see Dkts. 172-
32–172-37, 172-39 at Exhs. 122-45, 147-53, 158-59, 161, 183-85, Employee Declarations), and
that the employees were advised by defendants and their counsel that the declarations could
adversely affect their rights in this case, (see, e.g., Dkt. 192-2, Aragon Decl. at ¶ 5; Dkt. 192-4,
Cole Decl. at ¶ 5; Dkt. 192-5, Urteaga Decl. at ¶¶ 4-5), defendants’ counsel, as officers of the
court, should have insisted that each employee take a copy (in both English and Spanish) of his
or her declaration and consent form.
In any event, the record before the court is, in the court’s view, sufficient to enter a
preliminary injunction limiting and/or restricting defendants’ ability to communicate with their
employees. See Zamboni, 2013 WL 978935, at *3 (“[C]ourts have a responsibility to restrict
communications that are potentially coercive or misleading.”) (citing Gulf Oil Co. v. Bernard, 452
U.S. 89, 104, 101 S.Ct. 2193, 2202 (1981)); Sloan v. Ameristar Casinos, Inc., 2013 WL 1127062,
*2 (D. Colo. 2013) (“[I]t is proper and appropriate to limit communications between Defendants and
putative class members to avoid further potential for abuse.”); Belt v. Emcare, Inc., 299 F.Supp.2d
664, 667 (E.D. Tex. 2003) (“Courts have found a need to limit communications with absent class
members where the communications were misleading, coercive, or an improper attempt to
6
Perhaps the reason why defendants did not provide their employees with a copy of their
declarations is because defendants did not want to risk the possibility that one of the employees
would provide a copy of his or her declaration to the Secretary prior to the filing of the summary
judgment motion. After all, defendants had many of the declarations in their possession for more
than three months prior to finally disclosing them in connection with the summary judgment
briefing. (See Dkt. 190, Court’s Order of February 2, 2018, at 6) (“[E]ven though the vast majority
of the declarations were signed by the employees in July 2017, (see Dkts. 172-32–172-37, 172-39
at Exhs. 122-45, 147-53, 158-59,161, 183-85, Employee Declarations), defendants did not
disclose them until November 21, 2017, approximately four months later, (see id.; Dkt. 188,
Opposition at 2), and three months after the fact discovery cutoff of August 11, 2017.”).
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undermine Rule 23 by encouraging class members not to join the suit.”); Parks v. Eastwood, 235
F.Supp.2d 1082, 1084 (C.D. Cal. 2002) (“Other cases restricting Rule 23 pre-certification contact
are situations where defendant’s communications was misleading or improper.”). However, the
court is persuaded that the better course is to proceed to a trial on the merits. In other words, the
court is persuaded that its findings regarding the coercive circumstances surrounding the
interviews and gathering of declarations can be resolved with a remedy and pretrial management
plan short of the requested preliminary injunction. A full scale evidentiary hearing of the type the
court believes is necessary to address the issues before the court would involve the testimony of
defendants, defendants’ counsel, the Secretary’s investigators, and the 37 employees who signed
the declarations. (See, e.g., Dkt. 184, Secretary’s Application for Temporary Restraining Order
at 1) (requesting written discovery and the opportunity to depose defendants’ attorneys who were
involved in declaration-gathering). This evidentiary hearing would easily exceed the amount of
time it would take to try the case on the merits.
The court will fashion a pretrial management plan that will allow the case to proceed to trial
by balancing the need for corrective action with considerations of judicial economy and the least
restrictive interference with the rights of the parties. See Fed. R. Civ. P. 83(b) (“A judge may
regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§
2072 and 2075, and the district’s local rules.”); Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165,
172-73, 110 S.Ct. 482, 487 (1989) (“This authority is well settled, as courts traditionally have
exercised considerable authority ‘to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.’”) (quoting Link v. Wabash R. Co., 370 U.S. 626, 630-31, 82 S.Ct.
1386, 1389 (1962)); United States v. W.R. Grace, 526 F.3d 499, 508–09 (9th Cir. 2008) (“[T]he
district court is charged with effectuating the speedy and orderly administration of justice. There
is universal acceptance in the federal courts that, in carrying out this mandate, a district court has
the authority to enter pretrial case management and discovery orders designed to ensure that the
relevant issues to be tried are identified, that the parties have an opportunity to engage in
appropriate discovery and that the parties are adequately and timely prepared so that the trial can
proceed efficiently and intelligibly.”).
To move the case towards trial and eliminate any prejudice or adverse impact caused by
defendants’ coercive conduct, the court will do the following. First, the court will exclude the 37
witnesses that were the subject of the Court’s Order of February 2, 2018. See, e.g., Morden v.
T-Mobile USA, Inc., 2006 WL 2620320, *3 (W.D. Wash. 2006) (discounting declarations obtained
by an employer “because of the risk of bias and coercion inherent in that testimony”); Longcrier
v. HL-A Co., Inc., 595 F.Supp.2d 1218, 1230 (S.D. Ala. 2008) (“Through misleading
communications and nondisclosure of the true reason for those interviews, Defendant treated
putative plaintiffs unfairly and irrevocably tainted the Declarations procured by dint of that
deception. In light of this determination, the 245 Declarations . . . are hereby stricken and may not
be used for any purpose in this litigation.”). Also, the declarations are being excluded because
they were not timely disclosed, (see Dkt. 190, Court’s Order of February 2, 2018, at 5-6), a finding
which defendants did not dispute in their response to the Court’s Order of February 2, 2018. (See,
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generally, Dkt. 192, Response).
If the court were to allow the 37 witnesses to remain in the case, the court would have to
reopen discovery – further delaying resolution the case – to allow the Secretary to inquire into the
circumstances surrounding the gathering of the declarations to support their retaliation and
interference with investigation claims under the FLSA. See Gonzalez, 2012 WL 4466605, at *1-3;
(see Dkt. 190, Court’s Order of February 2, 2018, at 6, 19-20). Defendants will have more than
700 other employees from which to choose for purposes of trial. (See Dkt. 102, SAC at Exhibit
1). Defendants’ claim that they will be prejudiced by the exclusion of the 37 witnesses is
unpersuasive. For example, when the court – in response to defendants’ claim that they would
be prejudiced by the exclusion of the 37 witnesses and to the Secretary’s contention that
additional undisclosed employees were interviewed by defendants and their attorneys – asked
defendants’ counsel how many employees they had spoken to and collected information from,
defendants’ counsel refused to answer the question, claiming it was work product. (See Dkt, 201,
Reporter’s Transcript of [] February 13, 2018, at 27-32). Putting aside that the court could have,
based on this record, required defendants to provide the names of the individuals they interviewed
and/or attempted to extract statements from, see, e.g., Gonzalez, 2012 WL 4466605, at *1-*3
(ordering that party who had misleading contact with prospective plaintiffs turn over the contact
information of said prospective plaintiffs), defendants’ refusal to provide even the number of
employees they have interviewed undermines any claim of prejudice. What’s more, during oral
argument, defendants requested and the court granted them an opportunity to provide further
briefing with respect to the exclusion of the 37 witnesses. (See Dkt. 199, Court’s Order of
February 14, 2018). However, defendants later “submit[ted] the issue based on the existing
record[,]” without filing any supplemental briefing. (See Dkt. 200, Rebecca M. Aragon February
14, 2018 Letter Re: No Supplemental Brief By Defendants [] at 1).
Second, the court will order a Notice to Employees (and former employees) (“Notice”) and
Consent Form – in English and Spanish – that provides the employees with complete and
accurate information regarding this case and their rights in connection with this case.7 “In general,
district courts have both a duty and broad authority to control communications to putative class
members even before class certification and to enter appropriate orders governing the conduct
of counsel and the parties.” O’Connor v. Uber Techs., Inc., 2013 WL 6407583, *4 (N.D. Cal.
2013); Wang v. Chinese Daily News, Inc., 623 F.3d 743, 755 (9th Cir. 2010), cert. granted,
judgment vacated on other grounds, 565 U.S. 801 (2011) (“Federal Rule of Civil Procedure 23(d)
gives district courts discretionary authority, within the bounds of Rule 23, to exercise control over
a class action.”). “[A]n order limiting communications between parties and potential class
7
Again, FLSA actions are often treated like class actions in that they are representative
actions on behalf of groups of employees. See supra at note 2. Indeed, defendants state that,
“in an abundance of caution, . . . Defendants followed the law on precertification communications
with class members as analogous.” (Dkt. 192, Response at 8-9, n. 5).
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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. . . . In addition,
such a weighing – identifying the potential abuses being addressed – should result in a carefully
drawn order that limits speech as little as possible, consistent with the rights of the parties under
the circumstances.” Camp, 300 F.R.D. at 621 (quoting Gulf Oil Co., 452 U.S. at 101-02, 101 S.Ct.
at 2201) (internal quotation marks omitted); see Horizon Air Indus., Inc. v. Nat’l Mediation Bd., 232
F.3d 1126, 1136 (9th Cir. 2000), cert. denied, 533 U.S. 915 (2001) (“An employer’s free speech
right . . . is not absolute, however, and must be balanced against the employees’ rights to
associate freely and to be free of coercion, which can sneak in through seemingly-neutral
employer communications”) (citation and internal quotation marks omitted). The requisite factual
finding “does not require a finding of actual misconduct[],” but rather, “[t]he key is whether there
is potential interference with the rights of the parties in a class action.” O’Connor, 2013 WL
6407583, at *4-5 (internal quotation marks omitted). Courts have “imposed limitations on
communications, and invalidated agreements obtained through those communications, based on
findings that the communications were misleading, coercive, or omitted critical information.”
Retiree Support Grp. of Contra Costa Cnty. v. Contra Costa Cnty., 2016 WL 4080294, *6 (N.D.
Cal. 2016) (collecting cases).
Here, as described above and in the Court’s Order of February 2, 2018, defendants’
conduct relating to the interviews and gathering of declarations clearly “interfere[s] with the rights
of the [aggrieved] parties in [this] action.” See O'Connor, 2013 WL 6407583, at *4-5 (internal
quotation marks omitted). Defendants’ inherently coercive and misleading conduct has created
fear and confusion among its employees, i.e., the aggrieved parties, that, no doubt, has
significantly increased the possibility that the employees will choose not to participate in the
Secretary’s investigation or otherwise assert their rights in this lawsuit, thereby undermining the
policies under the FLSA. See Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1,
12, 131 S.Ct. 1325, 1333 (2011) (FLSA’s anti-retaliation provision prevents “fear of economic
retaliation from inducing workers quietly to accept substandard conditions”) (internal quotation
marks omitted); 29 U.S.C. § 202(a) (FLSA seeks to eliminate “labor conditions detrimental to the
maintenance of the minimum standard of living” of workers).
In short, based on the record before the court, the court is persuaded that the court’s
remedies and pretrial management plan are a less onerous alternative to conducting a full-scale
evidentiary hearing that will not resolve the merits of the case. Also, the court’s plan does not
require limiting defendants’ communications (except for the period of time until the Notice and
Consent Form are approved and distributed) with non-managerial employees for the duration of
the case.
Based on the foregoing, IT IS ORDERED THAT:
1. Paragraphs 1 through 12 on pages 18 through 21 of the Court’s Order of February 2,

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2018, are hereby vacated. The Court’s Order of February 2, 2018, otherwise remains in place.
2. The 37 witnesses and declarations that are the subject of the Court’s Order of February
2, 2018, are hereby excluded.
3. Defendants, their agents, and their counsel are hereby enjoined from communicating
with any non-managerial employee regarding underpayment or nonpayment of wages due or other
violations of the FLSA until the Notice to Employees and Consent Form are approved by the court
and disseminated as set forth below.8
4. The parties shall jointly prepare and submit for the court’s approval the following
documents: (1) a Notice to Employees and (2) a Consent Form. In addition to filing the subject
documents, counsel shall email the documents to the court’s courtroom deputy in Word or
WordPerfect (the court’s preference) format.
A. Notice to Employees: Plaintiff shall prepare and provide a proposed Notice to
8
The court will not enjoin the Secretary from communicating with non-managerial
employees. There has been no evidence presented that the Secretary has engaged in misleading
or coercive interactions with defendants’ employees. Absent a clear showing of abusive or
improper conduct, a court should not limit or restrict the Secretary’s important law enforcement
and investigatory functions. To enforce the FLSA, Congress empowered the Secretary to
investigate employers for compliance with the act, including the right to “enter and inspect such
places and such records (and make such transcriptions thereof), question such employees, and
investigate such facts, conditions, practices, or matters as he may deem necessary or appropriate
to determine whether any person has violated any provision of this chapter, or which may aid in
the enforcement of the provisions of this 0chapter.” 29 U.S.C. § 211. The FLSA grants the
Secretary these investigatory powers because the statute’s enforcement depends “not upon
continuing detailed federal supervision or inspection of payrolls, but upon information and
complaints received from employees seeking to vindicate rights claimed to have been denied.”
Kasten, 563 U.S. at 12, 131 S.Ct. at 1333 (internal quotation marks omitted). Further, defendants’
argument presented during the hearing that the Secretary is beyond its investigation stage and
is now a litigant before the court is unpersuasive. The likelihood of retaliation or misleading
employees is perhaps greatest during the course of a collective or class action involving or
between an employer and its employees, i.e., when the defendant employer is preparing its
defense. Indeed, the Secretary is currently investigating potential retaliation during the pendency
of this case. (See Dkt. 185-1, Secretary’s Memorandum of Points and Authorities at 2). In short,
given the lack of any evidence of abuse or misconduct on the part of the Secretary, the court will
not impose a limitation, even for a brief period, on the Secretary that would interfere with its
statutory powers.
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Employees (“Notice”) to defendants via e-mail no later than February 23, 2018. The
parties shall lodge the proposed Notice no later than noon on March 2, 2018.
In the event the parties are unable to reach an agreement on the language of the
Notice, then on a separate page following the Notice, defendants shall briefly state the
basis for their objection(s), any authority in support thereof and, if applicable, proposed
language. On the following page, the Secretary shall briefly state his response to the
objection(s), and any authority in support of his proposed language.
At a minimum, the Notice shall include: (1) information about the instant lawsuit,
including the time period it covers; (2) that the Department of Labor alleges that the
employees are owed back wages; (3) that the employees have a right to refuse to speak
to both the Department of Labor and defense counsel; (4) that defendants will not
discriminate or retaliate against any employee who chooses not to speak to defense
counsel; (5) that defendants will not discriminate or retaliate against any employee for
providing testimony that the employee worked off the clock, even if that violated any alleged
company policy of not working off the clock; (6) that speaking to defense counsel may
adversely affect the employee’s ability to collect wages allegedly owed to the employee;
and (7) all other relevant information about the employee’s rights under the FLSA, including
the right to be free from retaliation.
After the court approves the Notice, the Notice shall be translated by a court-certified
interpreter into the Spanish language. After the Notice is translated, the Notice shall be
provided to all employees listed in Exhibit 1 to the Second Amended Complaint (“SAC”).
(See Dkt. 102, SAC at Exhibit 1). The Notice, in English and Spanish, shall also be posted
at each of the 12 car wash locations, near the time clock at each work site. The Notice
shall also be mailed to the last known address of all former employees that are covered by
the temporal scope of this case. For current employees, defendants shall obtain an
acknowledgment by the employee indicating that he or she has received a copy of the
Notice. Defendants shall bear the costs of distributing and translating the Notice.
B. Consent Form: All previous consent forms are invalidated. Defendants shall
prepare and provide a proposed Consent Form to plaintiff via e-mail no later than February
23, 2018. The parties shall lodge the proposed Consent Form with the court no later than
noon on March 2, 2018.
In the event the parties are unable to reach an agreement on the language of the
Consent Form, then on a separate page following the Consent Form, the Secretary shall
briefly state the basis for his objection(s), any authority in support thereof and, if applicable,
proposed language. On the following page, defendants shall briefly state their response
to the objection(s), and any authority in support of their proposed language.

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At a minimum, the Consent Form shall state that: (1) speaking to defense counsel
and signing any document the employee is presented with is voluntary; (2) the employee
has a right to decline to speak to defense counsel or any of defendants’ representatives
about the lawsuit; (3) defendants will not discriminate or retaliate against any employee
who chooses not to speak to defense counsel; (4) defendants will not discriminate or
retaliate against any employee for providing testimony that the employee worked off the
clock, even if that violated any alleged company policy of not working off the clock; and (5)
speaking to defense counsel may adversely affect the employee’s ability to collect the
wages allegedly owed to the employee. The Consent Form shall also include contact
information for the Department of Labor counsel and/or its investigators.
After the court approves the Consent Form, the Consent Form shall be translated
by a court-certified interpreter into the Spanish language. Once approved, the Consent
Form must be provided to any non-managerial employee defendants or their counsel seek
to speak to in preparing for trial. A copy of the Consent Form in English and Spanish must
be provided to any such employee at least 72 hours prior to defendants or their counsel
meeting with said employee. Neither defendants or their representatives or counsel may
meet with any employees prior to receiving a signed Consent Form from the employee.
An employee’s failure to return the signed, Consent Form within 72 hours of receipt shall
be deemed as a refusal by the employee to be interviewed by defendants or their counsel.
An employee who provides a signed, Consent Form consenting to be interviewed shall be
provided with a copy of his or her signed Consent Form prior to the beginning of the
meeting. Defense counsel shall retain separate copies of all signed Consent Forms.
Defendants and/or their counsel shall keep a log of all employees to whom they
provide the Consent Form and with whom they meet. The log shall include information
such as the date, time, and location of any meeting with the employee, the length of the
meeting, the language in which the meeting was conducted, whether the meeting occurred
during work time, and who was present at the meeting.9
4. Defendants, their agents, and their counsel shall not take any steps to retaliate or
discriminate in any way against any current or further employee of the 12 car washes at issue in
this litigation, or any potential witness in this litigation.
5. No later than three court days after the Notice has been distributed to all employees,
defendants shall file a declaration, under penalty of perjury, setting forth the date(s) and the
manner in which the Notice was provided to all employees. After receiving defendants’
9
The court does not anticipate that the log will be disclosed at this time. However, the log
may have to be disclosed, if necessary, in a subsequent proceeding.
#:12090

declaration(s), the court will issue a separate order, setting deadlines and requirements for trial.
6. The Clerk shall serve a copy of this Order on the Special Master.
00 : 00
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Case 2:16-cv-04547-FMO-AGR Document 203 Filed 02/20/18 Page 1 of 11 Page ID

CIVIL MINUTES - GENERAL

Present: The Honorable Fernando M. Olguin, United States District Judge

“The caselaw nearly universally observes that employer-employee contact is particularly

CIVIL MINUTES - GENERAL

CIVIL MINUTES - GENERAL

CIVIL MINUTES - GENERAL

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generally, Dkt. 192, Response).

CIVIL MINUTES - GENERAL

Based on the foregoing, IT IS ORDERED THAT:

1. Paragraphs 1 through 12 on pages 18 through 21 of the Court’s Order of February 2,

CV-90 (06/04) CIVIL MINUTES - GENERAL Page 7 of 11

CIVIL MINUTES - GENERAL

A. Notice to Employees: Plaintiff shall prepare and provide a proposed Notice to

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CV-90 (06/04) CIVIL MINUTES - GENERAL Page 9 of 11

CIVIL MINUTES - GENERAL

CIVIL MINUTES - GENERAL

CV-90 (06/04) CIVIL MINUTES - GENERAL Page 11 of 11

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