On April 9, 2007, the California Court of Appeal, Second Appellate District, affirmed a ruling of the Los Angeles Superior Court permitting the disclosure to counsel for a putative class of the names, addresses, and telephone numbers of the defendant’s current and former employees unless, following proper opt-out notice, they objected in writing to the disclosure. Belaire-West Landscape, Inc. v. Superior Court, B194844 (April 9, 2007). The Belaire-West court applied the reasoning of the California Supreme Court’s recent decision in Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4th 360 (2007) (discussed in our January 30 post) to employee data to hold that requiring current and former employees to object to disclosure of their identities and contact information “present[ed] no serious invasion of their privacy interests.”

Real parties in interest Sebastian Rodriguez and Jose Luis Mosqueda filed a putative wage and hour class action against their former employer, Belaire-West Landscaping. During precertification discovery, the trial court compelled Belaire-West to provide the names and contact information of all current and former employees and adopted the plaintiffs’ proposed notice to those individuals that required them to opt-out in writing to prevent their information from being disclosed. The court reviewed in detail the analysis applied in Pioneer, and determined that the opt-out notice adequately protected the privacy rights of the current and former employees.

The opt-out notice adopted by the trial court advised current and former employees “of the lawsuit and its core allegations, and explained who may be a member of the proposed class. It described the investigation plaintiffs’ attorneys were performing, and stated that ‘[t]o assist in the investigation, the attorneys for the Plaintiffs wish to gather information regarding the nature of the work you do (or used to do), while employed by Belaire-West, including the amount of any overtime you may have worked. They have sought to obtain your names, addresses and telephone numbers, so that they can communicate with you about the allegations made in the lawsuit.’” The notice further stated as follows:

By order of the Los Angeles Superior Court, Plaintiffs’ counsel has already been provided your names. The Court has ordered that a letter be sent to you to determine if you would object to Plaintiffs’ counsel receiving your address and telephone number. You may elect not to provide your address and/or telephone number to Plaintiffs’ counsel on the grounds of privacy. [] Plaintiffs’ counsel would like to have your address and telephone number to help in their investigation. The Plaintiffs’ lawyers would like to contact you to obtain your input as to whether the Plaintiffs’ allegations in their lawsuit are accurate. [] THEREFORE, IF YOU DO NOT WANT YOUR ADDRESS AND TELEPHONE NUMBER TO BE PROVIDED TO THE PLAINTIFFS’ ATTORNEYS, YOU MUST complete and return THE ENCLOSED POST CARD to the address listed on the postcard.

The notice included the names, addresses, and telephone numbers of plaintiffs’ counsel, with the information that recipients had the right to contact plaintiffs’ counsel and that they speak Spanish. Finally, the notice advised current and former employees that they were “under no obligation to provide information to or discuss this matter with the Plaintiffs’ attorneys or any person representing the former employees,” were “also under no obligation to provide information to or discuss this matter with Belaire-West or any of its agents or attorneys,” and that their “employer[s] may not retaliate against [them] in any way for providing or refusing to provide any information.”

As explained in a previous post, the Court in Pioneer held that, under the privacy provision of the California Constitution, a representative plaintiff in a class action may obtain from defendant company the personal identifying information of other complaining consumers, even when those consumers do not affirmatively grant permission for their personal identifying information to be used.

The Belaire-West court concluded that the opt-out notices in the instant matter sufficed under Pioneer. The court acknowledged that the privacy concerns in the Belaire-West case were more significant than those in Pioneer because the information was provided to Belaire-West as a condition of employment (as opposed to the voluntary disclosures of consumers in Pioneer), and that employees reasonably expected that their employer would not divulge the information except as required to governmental agencies or benefits providers, in light of employers’ usual confidentiality customs and practices. Nonetheless, the court found that this did not mean that current and former employees would wish their contract information to be withheld from a class action plaintiff seeking relief for violations of employment laws.

The court found reasonable the trial court’s implicit finding that “no serious invasion of privacy would result from the release of the [information] to the named plaintiffs in a putative class action filed against their employer following a written notice to each employee giving them the opportunity to object to the disclosure of that information.” As in Pioneer,

the information, while personal, was not particularly sensitive, as it was contact information, not medical or financial details. Disclosure of the contact information with an opt-out notice would not appear to unduly compromise either informational privacy or autonomy privacy in light of the opportunity to object to the disclosure, as the court specifically found that there was no evidence of any actual or threatened misuse of the information.

The court further held that the balance of interests also supported the trial court’s order because the current and former employees were potential percipient witnesses and, as such, their identities and locations were properly discoverable under the California Code of Civil Procedure § 2017.010. Indeed, the court found that the balance tilted even more in favor of disclosure than in Pioneer because the “fundamental public policy underlying California’s employment laws” was at stake.