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MARTIN v. ALL CARE REGISTRY

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK


June 7, 1993

LYNN MARTIN, SECRETARY OF LABOR UNITED STATES DEPARTMENT OF LABOR, Plaintiff,
v.
ALL CARE REGISTRY, INC., a corporation, ALL CARE NURSING SERVICE, INC., a corporation and WILLIAM HALPERIN, individually and as President, Defendants.

The opinion of the court was delivered by: LEONARD D. WEXLER

ORDER

 WEXLER, District Judge

 The Secretary of Labor ("plaintiff") has brought suit against All Care Registry, Inc. ("All Care") and related defendants under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., claiming that 438 persons were employees of All Care and therefore entitled to overtime payments from defendants. The primary issue in the case is whether these 438 people were employees of All Care or independent contractors.

 On or about February 24, 1993, without consulting defendants, plaintiff sent address verification letters to the aforementioned people informing them of the pending action, stating that they may be called as witnesses, and requesting current addresses and phone numbers. Subsequently, defendants appeared before Magistrate Judge David F. Jordan and moved for a protective order to prevent plaintiff from further ex parte contacts with these putative employees. In an Order dated March 30, 1993, Magistrate Jordan denied defendants' motion. Now before this Court is an appeal from that Order.

 DISCUSSION

 Relying on Disciplinary Rule 7-104(a) of the New York Code of Professional Responsibility, defendants argue that plaintiff should should not be allowed to directly contact its putative employees because these persons are represented by defendants' counsel. Defendants also rely on Curley v. Cumberland Farms, 134 F.R.D. 77, 93-95 (D.N.J. 1991), a private suit in which the court approved plaintiff's waiver of its attorney work-product protection; required plaintiff to keep a log of its attempts to contact defendants' former employees; required plaintiff to keep notes of any ex parte meetings held with such former employees; and required plaintiff to make the aforementioned log and notes available to defendants upon demand. *fn1"

 In the instant case, plaintiff first notes that section 11(a) of the Fair Labor Standards Act expressly authorizes the administrator of the Wage and Hour division to "investigate and gather data regarding the wages, hours and other conditions and practices of employment . . . [and] question such employees, and investigate such facts, conditions, practices or matters as he may deem necessary or appropriate . . . . 29 U.S.C. § 211(a). Moreover, plaintiff notes that defendants do not claim that any of the persons contacted by plaintiff are defendants' managerial employees. In fact, defendants claim that, with the exception of five individuals, all the persons contacted are independent contractors and not defendants' employees at all. Therefore, there is no basis for defendants' underlying assumption that the putative employees are represented by counsel.

 Plaintiff also notes that Curley is a non-binding, minority position and urges the Court to follow such cases as Bouge v. Smith's Management Corp., 132 F.R.D. 560 (D. Utah 1990) and Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493, 558 N.E.2d 1030 (Ct. App. 1990) in which defendants unsuccessfully sought protective orders to prevent plaintiffs from making ex parte contacts with defendants' low-level employees by claiming that such employees were represented by defendants' counsel. See also Secretary of Labor v. Gotham Registry, Inc. et ano, (S.D.N.Y. 92-CV-6381) (at a conference held on May 21, 1993, Judge Stanton denied a protective order under circumstances paralleling the instant case).

 Under the facts of this case, it seems clear that where contact with defendants' employees is expressly authorized by statute; defendants have access to all the recipients of plaintiff's address verification letter; none of these recipients are alleged to be defendants' managers; and defendants claim that the putative employees are actually "independent contractors," there is no reason why plaintiffs should be prevented from making further, unrestricted ex parte contacts with defendants' putative employees.

 Accordingly, for the aforementioned reasons, Magistrate Jordan's Order of March 30, 1993 is affirmed.

 SO ORDERED.

 LEONARD D. WEXLER

 UNITED STATES DISTRICT JUDGE

 Dated: Hauppauge, New York

 June 7, 1993


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