Date of action:           Dec. 8, 2023Type of action:          Order granting Department of Labor’s motion to interveneCourt:                         U.S. District Court for the Southern District of New York in White Plains, New YorkDefendants:               Berkshire Nursery & Supply Corp.                                    Rosa Contracting Inc.                                    Rosa Land Tech Design Inc.                                    Jesus FloresBackground: In October 2022, two employees sued their former employers in a private action for claims under the Fair Labor Standards Act and the Trafficking Victims Protection Act, as well as various state laws. The employers recently sought to depose the former employee plaintiffs. The department, which has its own pending litigation and investigation involving two of the private defendants, learned that the employers intended to interrogate the plaintiffs about their communications with the department. Because such inquiry could result in the identification of individuals who communicated or cooperated with department investigators, department counsel requested to attend the depositions and ultimately, filed a motion to intervene in the private suit to protect such privileged information. In particular, the government informant’s privilege protects the identities of individuals who communicate with the department. Resolution: On Dec. 8, 2023, the U.S. District Court for the Southern District of New York granted the department’s motion to intervene in the private action so that the department could protect privileges such as the informant’s privilege. Since the court granted the motion to intervene, the department’s Regional Solicitor’s Office in New York has attended the depositions and objected to questions that may have elicited information that would reveal informants’ identities. The private litigation is ongoing.Quote: “The U.S. Department of Labor protects the identities of workers who provide information to the department to the greatest extent possible,” said Regional Solicitor of Labor Jeffrey S. Rogoff in New York. “Our intervention in a private Fair Labor Standards Act action shows that we will take necessary steps to protect the confidentiality of those communications. We are pleased the court recognized the department’s interests.”Significance: The procedural step of moving to intervene in a private FLSA action was taken to ensure that the identities of any informants who may have cooperated with the department during its investigation of Berkshire Nursery & Supply Corp. and Jesus Flores are not revealed, thereby protecting workers from unlawful retaliation. Notably, the court found that the department’s enforcement framework relies on its ability to protect the identities of informants, and that the department had a concrete interest in private proceedings where the identities of these informants could be revealed during the discovery process.The department’s Wage and Hour Division’s White Plains office is currently investigating two of the defendants in the private suit: Berkshire Nursery & Supply Corp., a Patterson nursery and garden supply business, and its president, Jesus Flores. In January 2023, the department brought its own lawsuit against Berkshire Nursery and Supply Corp. and Jesus Flores, alleging that they had obstructed the department’s investigation and retaliated against employees, and successfully sought a temporary restraining order to immediately enjoin such conduct. Ultimately, the court entered a consent preliminary injunction, which is still in effect. Both the department’s investigation and its lawsuit are ongoing.Docket Numbers: No. 22-cv-8776 (CS) (private action); No. 23-cv-275 (VB) (department’s action)

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