Metropolitan News-Enterprise


Monday, April 21, 2014


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Court Tosses Discovery Order in State Workers’ Overtime Suit

Identities of Employees Who Complained About Lack of Overtime Held Privileged by Ninth Circuit Panel


From Staff and Wire Service Reports


The Department of Labor need not identify hundreds of social workers who complained about an allegedly illegal overtime policy in Washington State, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel granted Secretary of Labor Thomas Perez a writ of mandamus, ordering a district judge to issue a protective order to maintain the confidentiality of some 350 employees of the Washington State Department of Social and Health Services who gave statements to the federal agency after it sued the state eight years ago.

The suit was filed after about 50 social workers complained that they were not paid overtime compensation for working 45 to 65 hours per week. The workers reported that DSHS had a policy not to pay for overtime but rather to offer “flex time” that heavy caseloads made impossible to use.

Questionnaires Sent

During discovery in the case, the agency sent out a questionnaire about work conditions to 1,500 DSHS employees and promised to keep the answers confidential. About 350 employees responded.

While about 150 of the 400 total informants in the case waived confidentiality, DSHS requested the identities of the remaining 250. The government objected, but U.S. District Judge Benjamin Settle of the Western District of Washington found that the employees were not protected by the informants’ privilege, and that DSHS’s defense depended on the disclosure of information about the employees.

He reasoned that “the release of general information as to all employees who were not paid overtime does not tend to identify specific informants.”

But Senior Judge Stephen Trott, writing for the appellate panel, said the order compelling Perez to answer the state’s interrogatories was an abuse of discretion because the state did not make a sufficient showing to overcome the government informants’ privilege.

No Boost to Defense

Those who complained after the suit was filed were still informants, Trott said, adding that disclosure of the information the state was asking for was likely to cause them to be individually identified and unlikely to aid the defense.

The jurist explained that under the legal theory relied upon by the secretary, the plaintiff has the initial burden of showing that the employer did not keep accurate time records, and that at least some employees performed work for which they were improperly compensated, and of producing and producing some evidence to show the amount and extent of that work. At that point, the burden would shift to the defense to show that the employees were properly compensated, or to overcome the inferences properly drawn from the plaintiffs’ evidence.

Because the plaintiff’s case is based entirely on the experiences of 150 identified employees—whose experiences are allegedly representative of all 2,000 of the department’s social workers—the state “knows all the details it seeks with respect to these key employees because the Secretary has turned over their 150 statements in total,” Trott wrote.

Extending confidentiality to all the informants is the best way to combat retaliation, as most of them still work for the department, the judge said.

Fear of Retaliation

“DSHS’s promise not to retaliate is ... insufficient to dispel such fears,” he said. “A common theme in the employees’ statements is that they were told by their immediate supervisors not to request overtime because the funding was not available. Several employees further reported being reprimanded or threatened with discipline when they persisted in requesting or recording overtime. As a practical matter, we are not convinced that DSHS can effectively monitor all 42 supervisors’ daily conduct to enforce its promise.”

Senior Judge Alfred T. Goodwin and Judge William A. Fletcher concurred in the opinion.

This is the not the first time that the Ninth Circuit has ruled in the case.

In 2011, the appellate court rescued the complaint from summary judgment by reversing Settle’s finding that DSHS social workers were exempt from overtime under the Fair Labor Standards Act as “learned professionals.”
     Positions subject to the exemption require “advanced knowledge customarily acquired by a prolonged course of specialized intellectual instruction,” while social workers must have an undergraduate degree in one of many fields, that ruling had said.

The case is In re Perez, 13-72195.


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