Yes, in most cases. Before a California court certifies a class, the employees described in the complaint aren’t the plaintiff’s lawyer’s clients, and the employer’s managers and lawyers can generally speak with them, interview them, and even settle their individual claims. Courts can restrict contact when there’s a record of coercion or misleading statements, and a release of wages that weren’t in dispute can be void. Handled well, these conversations shrink the class. Handled badly, they hand the plaintiff a new claim.
Are putative class members represented by the plaintiff’s lawyer?
Not before certification, under California law. In Atari, Inc. v. Superior Court (1985), former employees sued after a layoff of 600 workers, and the trial court let the plaintiffs contact the other employees freely while barring Atari from talking to them without plaintiffs’ counsel present. The Court of Appeal reversed that one-sided order.
The court rejected the idea that the no-contact ethics rule applied. It said it could not “accept the suggestion that a potential (but as yet unapproached) class member should be deemed ‘a party … represented by counsel’ even before the class is certified.” It also explained the fairness point: “Absent a showing of actual or threatened abuse, both sides should be permitted to investigate the case fully.”
The order the Court of Appeal directed said “no limitation shall be placed at the present time on the right of any party or of counsel for any party to communicate with potential class members,” while leaving any party free to seek a protective order “upon an adequate showing of need.”
Two things change the analysis. After certification, class members are generally treated as represented, and contact about the case should go through class counsel or the court. And an employee who has hired a lawyer individually is represented, whatever the class status.
When can a court limit what an employer says?
When there’s evidence of abuse, and the court makes findings. California courts look to the U.S. Supreme Court’s decision in Gulf Oil Co. v. Bernard (1981) for the standard. As the Court of Appeal summarized it in Howard Gunty Profit Sharing Plan v. Superior Court (2001), an “order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.”
That standard cuts both ways. It protects an employer’s right to investigate, and it gives a plaintiff a path to a restraining order if the employer’s communications cross the line. The conduct that tends to produce restrictions in employment cases is predictable:
Supervisors questioning hourly workers about whether they’ll join the case. A manager who controls schedules asking that question carries pressure that an outside investigator doesn’t.
Statements that misdescribe the lawsuit or its effect, like telling employees the case is meritless, that joining will cost them money, or that it will hurt the company’s ability to keep their jobs.
Settlement offers that hide the existence of the lawsuit or the rights being released.
Anything that looks like retaliation. Interviewing employees is not retaliation, but a schedule cut or write-up for the person who declined to give a statement can become its own claim.
A court that finds abuse can do more than stop the contact. It can order corrective notice, void releases, or restrict how the employer communicates for the rest of the case. That’s a worse position than the employer was in before it started talking.
Can an employer settle individually with employees before certification?
Yes, if the claim is actually disputed and wages that are conceded are paid without condition. The leading California case is Chindarah v. Pick Up Stix, Inc. (2009). After mediation failed in an overtime misclassification class action, the employer offered individual settlements, and over 200 current and former employees accepted and signed general releases. When eight of them joined the case anyway, the court held the releases barred their claims.
The limit comes from two statutes. Labor Code section 206 says that “In case of a dispute over wages, the employer shall pay, without condition and within the time set by this article, all wages, or parts thereof, conceded by him to be due.” And Labor Code section 206.5 says an employer “shall not require the execution of a release of a claim or right on account of wages due, or to become due,” unless those wages have been paid, and that a release in violation of the section “shall be null and void as between the employer and the employee.”
Chindarah reconciled those statutes with settlement. It quoted the long-standing rule that “An employer and employee may of course compromise a bona fide dispute over wages but such a compromise is binding only if it is made after the wages concededly due have been unconditionally paid.” Because the employer’s exemption defense, if it won, would defeat the overtime claim, the dispute was real. The court concluded that the releases “settled a dispute over whether Stix had violated wage and hour laws in the past; they did not purport to exonerate it from future violations,” and they did not “condition the payment of wages concededly due on their executions.”
| Practice | Why it matters | Risk if handled poorly |
|---|---|---|
| Interviewing employees about their work | Builds the record of variation that defeats certification | Coercion findings, corrective notice, limits on future contact |
| Collecting declarations | Shows how breaks, hours, or duties actually worked | Declarations discounted or struck as unreliable |
| Individual settlements before certification | Can shrink the class | Release void under section 206.5 if wages conceded due were withheld |
| Statements about the lawsuit itself | Employees often ask what the case means | Misleading statements support a protective order |
What should an interview of a putative class member include?
A short, consistent script delivered by someone who doesn’t supervise the employee. Many defense teams use an outside investigator or counsel, explain who they represent, say that the employee doesn’t have to talk, confirm that there will be no retaliation either way, and stick to facts about the employee’s own work.
The record of how the interview was conducted matters nearly as much as what the employee said. A plaintiff challenging a declaration will ask who attended, whether the employee was on the clock, and whether a supervisor reviewed the statement before it was signed. The firm’s post on opposing class certification in a wage and hour case covers why declarations that show real variation carry the most weight.
PAGA is a separate question. An individual settlement of wage claims doesn’t automatically end the employee’s role in a representative PAGA claim, and PAGA penalties belong largely to the state. Releases should be drafted around that limit.
Ground rules once a class complaint is served
- Issue a litigation hold covering timekeeping and payroll data, the policies in effect over the class period, and the texts and emails of the managers involved.
- Calendar the response deadline on the summons, and check for an arbitration agreement with a class waiver and an EPLI policy with notice and consent-to-settle terms.
- Tell supervisors, in writing, not to discuss the lawsuit with employees or treat anyone differently because of it, and route employee questions to HR or counsel.
- Decide with counsel whether interviews or individual settlements make sense, and pull the pay records that show which amounts are conceded and which are disputed.
- Get legal review of any script, declaration form, or settlement agreement before a single employee sees it.
Early communication strategy is one of the decisions that shapes a wage class action. The firm’s California wage and hour defense page describes how those cases are defended.
Questions about class member contact
Can a manager tell employees not to join the lawsuit?
No manager should say that. A statement discouraging participation, above all from someone who controls schedules or pay, is the kind of communication courts restrict, and it can support a retaliation claim. Employers can tell employees that a lawsuit exists, that participation is their choice, and that no one will be treated differently because of it. Anything beyond that should be reviewed by counsel first.
Do individual settlement agreements need to mention the class action?
California’s statutes don’t spell out a required disclosure, but leaving it out invites a court to find the release misleading. Employers that use individual settlements usually identify the case, describe the claims being released, say that the employee may talk to a lawyer, including class counsel, and confirm that conceded wages have been paid. Clear terms are what make the release hold up later.
Can the plaintiff’s lawyer contact current employees?
Generally yes, before certification. California courts commonly order employers to produce contact information for putative class members, often through an opt-out privacy notice, and plaintiffs’ counsel can then reach out. Atari treated equal access as the fair result. Employers should not respond by restricting employees’ ability to talk to anyone about wages, which raises its own problems under the Labor Code and federal labor law.
What happens to releases if the court later finds coercion?
The court can refuse to enforce them, order notice to the employees who signed, and give those employees a chance to rejoin the class. The employer may then face the original claims plus arguments for sanctions or fees. That’s why releases are worth getting right the first time: a disputed claim, conceded wages paid, plain terms, and no pressure.
If a class action has just been filed against your company
If your company has been served with a wage and hour class action, what managers say to employees in the first weeks can shape the case as much as the payroll data. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving class member communications and individual settlements. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Labor Code section 206 and Labor Code section 206.5. The cases are Atari, Inc. v. Superior Court (1985) 166 Cal.App.3d 867, Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, and Chindarah v. Pick Up Stix, Inc. (2009) 171 Cal.App.4th 796.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.