OPERATIONS

Can Retailers Keep Employees’ Contact Information Private?

Retailers sued in class or representative actions for alleged wage-and-hour violations often object to discovery requests that seek the contact information (names, addresses, etc.) of their employees — the rationale being that such information is private and burdensome to collect and should not be disclosed unless there is reason to believe that the alleged unlawful practices occurred in locations other than just the named plaintiff’s store.

Unfortunately, the California Supreme Court held in Williams v. Superior Court (Marshalls of CA, LLC), S227228 (July 13, 2017) that there is nothing unique about claims filed under the California Private Attorneys General Act of 2004 (“PAGA”), that would justify restricting the disclosure of contact information to the locations at which a named plaintiff work(ed). PAGA allows employees to bring representative actions against employers on behalf of themselves and other “aggrieved employees” for alleged Labor Code violations.

In so holding, the Supreme Court reversed a decision of the California Court of Appeal that would have precluded PAGA plaintiffs from obtaining the contact information of other potentially aggrieved employees beyond the discrete location at which they work(ed) without first making a threshold evidentiary showing that (a) they were aggrieved employees and (b) they had knowledge of systemic statewide Labor Code violations.

Rather, to justify the disclosure of contact information, the Supreme Court found that it is sufficient for a named plaintiff to allege that the at-issue violations occurred, that plaintiff himself or herself was aggrieved, and that the defendant employer had a systemic, statewide policy that caused injury to other employees across California.

While the decision deprives employers of the ability to limit the scope of discovery to some extent, the holding of Williams is actually quite narrow and should not be read as a carte blanche invitation to propound unlimited statewide discovery without any preliminary showing of good cause; the Supreme Court emphasized that its decision was limited to the particular facts before it — i.e., disclosure of contact information of similarly situated (allegedly aggrieved) nonexempt employees throughout the State of California.

Background
Michael Williams was a retail worker for Marshalls of CA, LLC. In 2013, Williams sued Marshalls under PAGA, alleging that Marshalls failed to provide Williams and other similarly situated (i.e., aggrieved) employees meal and rest periods.

At an early stage of discovery, Williams sought the contact information of all nonexempt California employees who worked at Marshalls during the alleged statutory period. Marshalls responded that there were 16,500 potentially aggrieved employees but refused to provide their contact information on the ground that the request was (a) overbroad, (b) unduly burdensome, and (c) invaded its employees’ privacy rights.

The trial court ordered Marshalls to provide the contact information for employees at the store where Williams worked but denied statewide disclosure. The trial court stated that Williams could renew his motion seeking contact information after being deposed for at least six hours and establishing some evidentiary basis for his statewide allegations. The Court of Appeal affirmed the ruling.

Reversal by the Supreme Court
The California Supreme Court reversed the Court of Appeal’s decision, holding that a showing of good cause is not required prior to statewide disclosure of employee contact information. The Court reasoned that the scope of discovery is broad in California and that the disclosure of the names and addresses of potential witnesses is a routine and essential part of pretrial discovery. That the action was a PAGA action and not a putative class action did not change the outcome. According to the Court, in PAGA cases and in the class action context, state policy favors access to contact information for employees the plaintiff purports to represent.

Separately, the Supreme Court found that privacy objections typically will not merit altogether withholding contact information. In reaching this conclusion, the Court expressly endorsed the reasoning of Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554 (2007), noting that, in general, any concerns about keeping contact information private are adequately addressed through the issuance of a “Belaire-West” notice. The notice informs employees of the claims and gives them an opportunity to opt out from disclosure of their contact information.

Despite the Court’s holding, Williams is not as bad for employers as it looks. While the decision prevents employers from categorically limiting disclosure of employees’ contact information to the location where the plaintiff worked, it does not eliminate other discovery tools used to limit and narrow discovery. Specifically, the Court noted that Marshalls could have delayed or modified the scope of discovery by producing evidence that the production of contact information on a statewide basis would be burdensome or by seeking a court order sequencing discovery.

Takeaways
Williams makes it significantly more difficult for employers to avoid disclosing contact information for all potentially aggrieved employees/putative class members in representative PAGA/wage-and-hour class actions. Absent unusual circumstances, retailers should be prepared to turn over contact information.

However, Williams should not be viewed to allow unlimited discovery on a statewide basis. Employers continue to have an array of tools to oppose overbroad requests and to manage the timing and scope of pre-certification discovery and should continue to push back with respect to any overbroad discovery requests that seek statewide information prematurely.


Cheryl D. Orr is elected managing partner of Drinker Biddle & Reath LLP and chair of the firm’s national Labor and Employment Practice Group. Jaime D. Walter is senior attorney, and Ramon A. Miyar and Irene M. Rizzi are associates at the firm.

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C-SUITE

Unsettled retail environment taking toll on senior executives pay

BY Marianne Wilson

Volatility in the retail industry is now hitting senior retail executives in the pocketbook.

Seventy-three percent of retail companies paid little to no bonuses to senior executives in 2017 for 2016 performance, with 35% paying no bonus and 38% paying only small bonuses to their executives, according to new research by Korn Ferry. The company conducted an analysis of 40 North American retailers with annual sales between $1 billion and $50 billion

The study found that the percentage of retailers paying no bonuses to executives has steadily increased during the past five years. Only 15% of the retail companies paid senior executives their target or above bonus amount in 2017.

“Bonuses are typically tied to the performance of the retailer, and historically about 50% of retailers achieve their business plan for profits and pay executives their normal bonuses,” said Craig Rowley, a Korn Ferry senior partner specializing in the retail industry. “The fact that this year only 15% of companies met or beat their expected profit plan and paid full bonuses to executives exemplifies the challenges facing the industry.”

Korn Ferry provided a five-year look at the percentage of retail senior executives who received no bonus:

2017: 35%

2016: 25%

2015: 25%

2014: 11%

2013: 10%

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News

Chain Store Age announces SPECS/2018 Advisory Board, new marketing

BY Katherine Boccaccio

Chain Store Age announced the selection of the Advisory Board for SPECS/2018, the annual retail event produced by CSA and attended by retail and food-service executives who plan, design, build, and maintain stores and restaurants nationwide.

Now in its 54th year, SPECS will host its 2018 conference in Dallas, at the Gaylord Texan, March 18-20. The event will focus on what’s next, and what is shaping the future of physical retail.

The SPECS Advisory Board, which is comprised of 46 industry leaders both from leading retail companies and key supplier organizations, will advise and direct the educational program for the 2018 conference. The packed slate of workshops, roundtables and panel presentations covers a wide range of emerging and evolving issues – and the Board, as industry insiders, plays a key role in the planning and creation of each.

Five veteran members were selected as Executive Advisory Board members, charged with team leadership and overall program direction:

Richard Elkins, director of construction services, Firehouse Subs; Craig Hale, associate, HFA; Lori Koeppe, operations coordinator, The Buckle; Lisa Smola-Hollo, project manager, growth and development, ULTA Beauty; and Wendy Whetton, senior facilities project manager, Harbor Freight Tools. Serving as a rotating Executive Advisory Board member to assist with team leadership is Renee Tobin, strategic sourcing manager, Brookdale Senior Living.

Following is a listing of the SPECS/2018 Advisory Board.

Aaron Ancello, VP, regional facilities manager, TD Bank

Dan Beeman, president, Beeman Development Group

Lisa Bien-Sinz, SVP marketing and HR, Inside Edge Commercial Interior Services

Dan Bilancia, business development manager, Johnson Controls/York

Brad Bogart, president, Retail Contractors Association

Mike Burton, director of construction and corporate facilities, The Home Depot

Brandon Collier, director of architecture, design and store planning, RaceTrac Petroleum

David DiCarlo, regional director of construction, rue21

Greg Duchane, director, retail-restaurant national accounts, Trane

Richard Elkins, director of construction services, Firehouse Subs

Brian Foster, senior VP, Paint Folks

Bridget Farrell, senior manager of architecture and building design, JCPenney

Mike Gordon, facilities maintenance manager, Fogo de Chao

Greg Green, divisional VP national accounts, Orion Energy Systems

Scott Griffin, director of store design, Stein Mart

Craig Hale, Associate, HFA

Nick Hanson, construction coordinator, Whole Foods Market, 365 by Whole Foods Market

Susan Hecht, VP, solutions development, sales, SMS Assist

Al Hellaby, senior project manager, development group, Wegmans Food Markets

George Holz, director of construction, Warby Parker

Angie Huff, VP/retail, NGS Films and Graphics

Keith Johnson, director of store design, Dollar Tree & Family Dollar Stores

Lisa Johnson, VP, Interstate Signcrafters

Bob Keingstein, president, BOSS Facility Services

Christie King, senior architect, proto and new formats, Wal-Mart Stores

Tiffany Ko, program manager, store development, lululemon athletica

Lori Koeppe, operations coordinator, The Buckle

Sally Lee, market segment manager-retail, Sylvania-LEDVANCE

Kevin Nolen, director of retail expansion and facilities, Z Gallerie

Jim Pagano, executive VP, Boston Barricade

Randy Pannell, VP of construction, Saks Fifth Avenue

Vaun Podlogar, president, State Permits

Terry Pratt, senior construction project manager, Academy Sports and Outdoors

Rob Reiter, chief security consultant, Calpipe Security Bollards

Kristen Roodvoets, senior manager of retail store planning and development, Alex and Ani

Eric Russell, director of construction, L Brands

Lisa Schwartz, president, ProCoat

Lisa Smola-Hollo, project manager, growth and development, Ulta Beauty

Kevin Tierney, VP strategic accounts retail, Tarkett

Renee Tobin, strategic sourcing manager, Brookdale Senior Living

Bennett Van Wert, national sales manager, DWM Inc.

Eric Voyles, director of Facilities Management, Dollar General

Wendy Whetton, senior facilities project manager, Harbor Freight Tools

Jason Woods, senior project manager, Tesla

Tracy Scanlan Zaslow, senior director of design and construction, Luxury Brand Holdings

Melissa Zimmerman, director of store care, Walgreens

Chain Store Age also unveiled a new tagline to be used in all SPECS 2018 marketing and promotional efforts: The Forefront of Physical Retail.

“SPECS has always been about brick-and-mortar retail,” said Katherine Boccaccio, executive director of events. “And we haven’t wavered from that position. Physical stores are here to stay, and our events are designed to present and discuss the latest innovations impacting brick-and-mortar stores as well as focus on the future of physical retail.

“The new tagline sums up that position, and reflects what our Board and our attendees come to SPECS to learn about,” said Boccaccio.

Are you interested in learning more about the qualifications required for SPECS Advisory Board consideration? Contact Katherine Boccaccio, Executive Director of Events, at[email protected], for details.

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