Employer Ordered To Turn Over Employee Information In Wage Payment Class Suit

by Tara Arick on May 1, 2013 · 0 comments

in Labor and Employment Law

- From LexisNexis® Mealey’s™ Daily Legal News.

A retail employer must turn over employee records to a class plaintiff alleging that her former employer violated the West Virginia Wage Payment and Collection Act (WPCA) when it failed to pay her wages within 72 hours of her termination, a West Virginia federal judge ruled April 25 (Stephanie N. Paulino, et al. v. Dollar General Corporation, et al., No. 12-75, N.D. W.Va.; 2013 U.S. Dist. LEXIS 59371).

On July 10, 2012, Stephanie Paulino sued Dollar General Corp. and DolGenCorp LLC in the Berkeley County, W.Va., Circuit Court.

She alleged that the defendants violated the WPCA. Paulino also alleged that the defendants failed to pay her liquidated damages and interest, as required by the statute when a business does not comply with any WPCA rule. Paulino brought this claim on behalf of herself and all other former employees who were terminated within five years of the filing of suit and not timely paid or, in the alternative, not paid the liquidated damages and interest as required by the WPCA.

On Aug. 15, the defendants removed the action to the U.S. District Court for the Northern District of West Virginia based on the amount in controversy.

Discovery Requests

On Oct. 23, Paulino served her first set of discovery requests. After she deemed the defendants’ responses deficient, she moved to compel. On Jan. 22, the magistrate judge issue an order denying three of the 12 document requests that Paulino moved to compel. The defendants on Jan. 29 filed an emergency motion for clarification regarding the magistrate judge’s order granting Paulino’s motion to compel on Request Number 5, which requested “[f]or each former employee who was employed during the Period produce records concerning whether that employee voluntarily left employment or involuntarily left employment.”

On Jan. 30, the magistrate judge issued an order stating that he fully intended to grant Paulino’s motion to compel Request Number 5. The defendants argued that the request was outside the scope of discovery because it asks whether the employees were voluntarily or involuntarily terminated.

That same day, the District Court granted the defendants’ motion for partial and temporary stay of the magistrate judge’s original order.

On Feb. 5, the defendants filed their objections to the magistrate judge’s original order granting in part and denying in part Paulino’s motion to compel and awarding reasonable expenses. Also that day, the magistrate judge conducted a hearing on the issue of the award of reasonable expenses, including attorney fees and sanctions. Three days later, the magistrate judge entered an amended order granting Paulino’s motion to compel in its entirety and awarding reasonable expenses as a result of the defendants’ position that Paulino was voluntarily terminated. The magistrate judge declined to impose sanctions.

On Feb. 21, the District Court granted a motion by the defendants to partially and temporarily stay the magistrate judge’s amended order. The following day, the defendants filed their objections to the magistrate judge’s amended and original order. Paulino filed her response on March 11. A hearing was held April 19.

Order Affirmed

Judge Gina M. Groh overruled the defendants’ objections to the magistrate judge’s original and amended order, affirmed the amended order and lifted the partial and temporary stay.

“In this case, Defendants have suggested that Plaintiff was ‘voluntarily terminated’ for failing a drug test; however, Plaintiff argues that she was ‘involuntarily terminated’ and thus the seventy-two hour rule under the WPCA applies. Plaintiff’s request for the contact information of all employees, voluntarily and involuntarily terminated, is relevant as Defendants have claimed that Plaintiff was voluntarily terminated. [The magistrate judge] found that the information was relevant and helpful to Plaintiff’s putative class action. . . . In this case, the information is relevant because Defendants may have labeled a former employee’s termination as voluntarily terminated even though, in reality, the former employee was involuntarily terminated and the seventy-two hour rule under the WPCA would apply. Therefore, Plaintiff has reasonable grounds for requesting the contact information of former employees to determine whether they were, in fact, voluntarily or involuntarily terminated. This information is relevant and reasonably calculated to lead to the discovery of admissible evidence. Additionally, the information would be necessary to determine the [Federal] Rule [of Civil Procedures] 23 certification issues regarding whether ‘(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequate protect the interests of the class,’” Judge Groh held.


David M. Hammer of Hammer, Ferretti & Schiavoni and Harry P. Waddell of the Law Office of Harry P. Waddell, both in Martinsburg, represent Paulino.

Jason R. Elliott and Joel S. Allen of Morgan, Lewis & Bockius in Dallas, Larry J. Rector of Steptoe & Johnson in Bridgeport, W.Va., and Michelle L. Dougherty of Steptoe & Johnson in Wheeling, W.Va., represent the defendants.

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