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Court Decision Sends Mixed Messages about Using Social Media for Opt-in Notice in FLSA Cases

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Recent decisions by the U.S. District Court for the Southern District of New York have given mixed messages on the appropriateness of using social media to provide notice to people who may want to join a Fair Labor Standards Act (FLSA) lawsuit. The court initially allowed the plaintiffs in the case to use social media to provide notice, but three months later ruled that social media is not an appropriate method.

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A Bloomberg BNA blog item on the court case cited the Pew Research Center, reporting that 74 percent of Internet users access social networking sites, and 89 percent of online adults between the ages of 18 and 29 use such sites.

This wide use of social media was one of the reasons the plaintiffs in the case asked to and were initially allowed to use social media to provide notice to other potential plaintiffs, according to Bloomberg BNA.

The case involves a lawsuit brought by unpaid interns for the popular online media company Gawker Media. The interns claim they performed duties similar to those of paid, non-exempt staff, and therefore should have been treated as employees and paid a minimum wage under the FLSA.

In an initial ruling on the lawsuit in November 2014, the district court allowed the use of “social media to provide potential plaintiffs with notice that mirrors the notice otherwise approved by the court.”

The Bloomberg blog reported that Gawker Media did not maintain complete information on its interns’ names and addresses, which contributed to the court’s initial decision on the use of social media to seek out more plaintiffs. The court also found the majority of interns were likely to have at least one social media account.

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But in March 2015, the same court ruled the plaintiffs were too broad in their use of social media to find more people to join the lawsuit, including the proposed use of general, public messages on Twitter, LinkedIn and Facebook. It also said the use of social media was punitive, attempting to punish the defendant.

“The Court approved use of social media notice on the understanding that such notice would effectively mirror the more traditional forms of notice being used in this case,” the court ruling stated. “This generally means that it expected the notice to contain, private, personalized notifications sent to potential plaintiffs” who may not be reachable in other ways.

What will this mean for the future, as people who have been treated unfairly in the workplace seek out new ways to find others to join their lawsuits in this social media age? The Bloomberg blog states that more proposals to use social media to provide class notice can be expected.

“The path to approval of a social media plan is to narrowly tailor it to notify and inform the class or those eligible to opt-in to a collective action, and to avoid overreaching the target audience,” the blog item states. “Employee advocates may even be able to argue — sometime in the future — that social media constitutes the best notice that is practicable under the circumstances.”

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The blog also stated the courts may try to balance the need to find more plaintiffs with protecting defendants from “the punitive aspects of social media.”

If you have been untreated unfairly at work and think you might have a claim under the Fair Labor Standards Act, it’s important to contact a qualified employment attorney as soon as possible.

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