Fair Labor Standards Act cases frequently involve privilege issues, in part
because employers' treatment of employees' status and their treatment of
compensation frequently (if not normally) implicate legal advice that those
employers have received.
In Raymond v. Renew Therapeutic Massage, Inc., Civ. Case No.
18-13760, 2022 U.S. Dist. LEXIS 196908, at *2 (E.D. Mich. Oct. 28, 2022),
plaintiff filed a Motion in Limine "seeking to exclude evidence or
testimony related to advice of counsel regarding [defendant] Renews'
classification of [plaintiff] Raymond as an independent contractor" for
compensation purposes. Plaintiff filed her motion after defendant's counsel
noted during a pretrial conference "that he intended to defend against
[plaintiff]'s FLSA claims and damages by using the advice of counsel
defense." Id. at *3. The court granted plaintiff's motion, noting
that: (1) defendant Renew "never identified an advice of counsel
affirmative defense on the record" (id. at *11-13); and (2) Renew
"refused to allow Raymond to inquire about the legal advice obtained by
[defendant's deponent] in a deposition, asserting attorney-client
privilege." Id. at *16. Although not using the word karma, the
court explained that "it would be unfair to Raymond to argue against a
defense regarding communications that she was prevented from inquiring
about during discovery." Id. at *17.
Next week's Privilege Point will describe an FLSA case decided three days
later, which focused on another privilege principle.