Labor & Employment Law Daily Wrap Up, PROCEDURE—D. Utah: Employer prohibited from communicating with opt-in plaintiffs of class outside presence of counsel, (Feb 23, 2026)

By Ursula Furi-Perry, J.D., MBA

Silence about ongoing litigation while offering money presents a risk of abuse, as it may influence individuals’ decisions regarding participation; even if not overtly coercive, the communications could undermine the integrity of the collective action process.

Following a federal district court in Utah’s grant of a motion for conditional certification of an FLSA collective action, the court granted a motion for protective order employees prohibiting an employer from contacting or communicating with opt-in plaintiffs outside presence of counsel. The plaintiffs, non-exempt consultants, filed suit against an accounting and consulting firm, claiming they were not paid for non-billable work. At issue after certification of the class were disputes regarding communications with putative class members. The court noted that the employer had assured the plaintiff that it would cease contact, yet communications continued, and the court held that this pattern justified judicial intervention. Further, the court found no evidence of abuse by the plaintiffs’ counsel, but because the parties had already agreed upon specific notice procedures, the court declined to permit the plaintiffs to add unsolicited phone calls to putative class members (Curry v. Outsourced Associates & Staffing, LLC dba Now CFO, LLC, D. Utah, Feb. 19, 2026).

Non-billable hours. The plaintiffs filed a collective action under the FLSA against an accounting and consulting firm, which employed hundreds of non-exempt consultants who were classified as overtime-eligible. Under the company’s Employment Agreement, consultants were paid only for “Client Billable Hours,” defined as hours billed to clients for services rendered. The plaintiffs alleged that this compensation structure resulted in consultants not being paid for non-billable work such as team meetings, performance reviews, and training sessions, frequently working more than forty hours per week without receiving overtime compensation.

The court granted conditional certification for a collective class and ordered the parties to meet and confer regarding the content and method of providing notice to potential opt-in plaintiffs. Following certification, disputes arose regarding communications with putative class members, and the plaintiffs moved for a protective order prohibiting the employer from contacting potential opt-in plaintiffs outside the presence of the plaintiffs’ counsel, and also requested a curative instruction. The plaintiffs alleged that the employer conducted an “audit” and issued payments to putative class members without informing them of the pending lawsuit, potentially discouraging participation. The employer countered that the communications were routine business matters, not coercive, and did not reference the litigation, and also moved for an order prohibiting plaintiff’s counsel from initiating phone contact with putative class members beyond the agreed-upon notice methods.

Communications. The district court began by reaffirming that district courts possess broad authority to manage communications in class and collective actions but also noted that restrictions on communications must be supported by a “clear record” and specific findings that justify limiting party rights.

Employer audit. The court then expressed concern over the employer’s conduct: although the employer characterized their outreach as a routine audit, the court found it troubling that they issued payments to putative class members without disclosing the existence of the pending lawsuit. The court emphasized that silence about ongoing litigation while offering money presents a risk of abuse, as it may influence individuals’ decisions regarding participation; even if not overtly coercive, the communications could undermine the integrity of the collective action process.

Moreover, the court noted that the employer had assured the plaintiff that it would cease contact, yet communications continued, and the court held that this pattern justified judicial intervention. Still, the court sought narrowly tailored relief, permitting the employer to communicate with current employees regarding legitimate business matters but prohibiting communications with former employees. The court also ordered the employer to cease communications concerning payments unless they disclosed the lawsuit and provided plaintiffs’ counsel’s contact information.

Regarding the employer’s motion, the court found no evidence of abuse by the plaintiffs’ counsel, but because the parties had already agreed upon specific notice procedures, the court declined to permit the plaintiffs to add unsolicited phone calls to putative class members. The court concluded that expanding contact methods beyond the agreed notice process was unwarranted at that stage, granting the employer’s motion.

Accordingly, the court granted in part the plaintiffs’ motion for a protective order and granted the employer’s motion prohibiting the plaintiffs from unauthorized communication.

The case is No. 2:25-cv-76 DBB DBP.

Judge: Pead, D.

Attorneys: Galen Shimoda (Shimoda & Rodriguez Law) for Michelle Curry. David W. Tufts (Dentons Durham Jones & Pinegar) for Outsourced Associates & Staffing, LLC.

Companies: Outsourced Associates & Staffing, LLC

Cases: Procedure WageHour ClassActions Overtime UtahNews