FLSA Cases Raise Interesting Privilege Issues: Part I

January 11, 2023

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.