When a class is certified in a Fair Labor Standards Act collective action, the employer turns over names and addresses and the opt-in letters go out. Nowadays, there is a distinct variation on this theme. I have often commented (lamented) on the clash of technology and the law and this is another example of that tension. A federal judge has now approved the request of former Gawker Media LLC interns to notify potential class members of the proposed collective action through social media. The Judge, however, (thankfully) concluded that “friending” these putative opt-ins was too much. The case is entitled Mark et al. v. Gawker Media LLC and was filed in federal court in the Southern District of New York.
The interns, who claim they are actually employees under the Fair Labor Standards Act and entitled to unpaid wages/overtime, requested that they be allowed to notify potential class members via Facebook, Twitter and LinkedIn. The employees assert that email/mailing addresses for fifty-five (55) former interns were not available, but they claimed that more than two dozen of them had Facebook/Twitter accounts and sixteen had LinkedIn accounts.
The employees asked permission to “follow” the former interns on Twitter so they could send them a direct private message. They also wanted to “friend” former interns on Facebook so that they could send a direct message that did not go automatically to spam; they also wanted to send “InMail” messages to other former interns on LinkedIn.
The Judge’s Order approved the requests but set two conditions: 1) the plaintiffs “unfollow” any former intern on Twitter if the intern does not opt in by the set deadline; and, 2) the plaintiffs were not allowed to “friend” individuals on Facebook “as it could create a misleading impression of the individual’s relationship with plaintiffs’ counsel.” The Judge denied the request to send email notices to a mass list of intern applicants which could or could not include individuals who actually worked as interns, as that was overbroad.
Last month, the Judge denied the plaintiffs’ request to notify putative opt-ins by posting notices on social media sites Tumblr and Reddit, concluding that this would tend to notify people not connected to the case, as opposed to individuals with opt-in rights.
Oh, how I yearn for the “old days” when snail mail ruled!
The purpose of the FLSA notice is to advise eligible people of the lawsuit and to give them the opportunity to opt in. The purpose of the notice is not to advertise the alleged violations of the employer and to give unbridled and widespread publicity to the lawsuit. This is exactly what can (and will) happen if plaintiffs win the right to utilize social media in their dissemination of the opt-in procedure. The fear for me, as a management side practitioner, and for employers, is that it also may incite others to file similar lawsuits, founded or otherwise.
It does not matter if this is right or wrong. It is here to stay. I have been involved in a number of class actions where this social media reach outreach has been allowed. This is more the rule than the exception and employers need to be keenly aware of this.