The use of social media in employment law continues to evolve, slowly but surely. One recent and important development is the use of social media to provide notice to potential plaintiffs regarding wage and hour class action lawsuits.
More specifically, in April 2015, a federal court in New York issued a ruling that may signal a shift towards increased use of social media in class action litigation. The underlying lawsuit against Gawker Media, LLC and its owner Nick Denton was filed almost two years ago. The lawsuit itself is fairly typical. A few former “interns” at Gawker alleged that Gawker violated the Fair Labor Standards Act of 1938, as amended (“FLSA”). The interns have alleged, among other things, that they were not paid correctly (or at all) while they performed work for Gawker under the incorrect classification of “intern.” (Gawker, unfortunately, is not the first, and won’t be the last, employer to believe they are correctly classifying/paying (or not) its “interns.” Employers must be clear on the legalities of the narrow category of an “unpaid intern” – more on this below).
Court Denied Plaintiffs’ First Request To Use Social Media For Class Notice
The interns brought their claims as a FLSA collective action against Gawker, and a class was conditionally certified in August 2014. Thereafter, the parties and the court worked to determine if and how social media should be used to assist in notifying potential class members about the lawsuit. Traditionally, courts rely on the parties to use U.S. Mail to provide notice of a class/collective action. Indeed, it is likely that you have received notice in your mailbox regarding various consumer class actions that you may have been a member of over the years. Recently, direct email, where available has been authorized by some courts in providing class action notice.
Here, in this case, the plaintiffs at first asked to be able to use Twitter, LinkedIn, Reddit, Facebook and Tumblr to get the word out about the class action lawsuit. The court denied this initial request for a few reasons. First, the court determined that plaintiffs’ proposal appeared to focus on embarrassing and/or punishing Gawker via widespread use of social media. The court noted that the proposal “lacks any realistic notion of specifically targeting its notice to individuals with opt-in rights, and instead would call attention to the lawsuit mostly of individuals with no natural connection to the lawsuit whatsoever.”
Furthermore, the court noted that the proposed use of social media was “overbroad.” This was so because there is a finite number of former Gawker interns, and sending general status updates on Facebook and/or LinkedIn (and tweets on Twitter) did not adequately target the intended audience of former Gawker interns. Indeed, plaintiffs informed the court that out of 55 known former Gawker interns, 27 had Facebook or Twitter accounts, and 16 had a LinkedIn account.
Court Approved Revised Plan To Use Social Media For Class Notice
In early April 2015, plaintiffs offered a revised proposal to use social media for class notice. Plaintiffs sought to be allowed to “follow” former interns on Twitter, “friend” on Facebook, and “connect” on LinkedIn in order to be able to send direct, private messages from their lawyers to the former interns regarding the class. Ultimately, the court approved the revised plan, except for three components. First, the court denied plaintiffs’ request to send notice to internship applicants, unless those applicants became actual interns. This was so because mere “applicants” are not properly part of the collective action if they did not become interns for Gawker. Second, the court ordered that plaintiffs must “unfollow” any interns on Twitter when the opt-in period closed, unless the individuals chose to opt in the class action. Also, the court ordered that plaintiffs are not allowed to “friend” individuals on Facebook “as it could create a misleading impression of the individual’s relationship with Plaintiffs’ counsel.”
As the court noted, the new social media plan is tailored to “reaching known former Gawker interns with a substantially similar message to that contained in the traditional forms of notice sent in this case. Plaintiffs’ proposal, by and large, no longer presents the danger of simply advertising a lawsuit against Defendants, but instead serves the primary purpose of a FLSA notice, which is to notify and inform individuals eligible to opt in to the collective action.”
What This Means
Courts are more accepting of the utility and effectiveness of harnessing social media to provide notice to potential class/collective action members. And, more and more courts are likely to approve of such methods. However, the notices sent via social media, will be scrutinized to ensure that they are properly designed to achieve notification of correct individuals. The use of social media should not be allowed to embarrass and/or punish defendants, to publicize the lawsuit to non-parties, or to create even the appearance of a misleading relationship between plaintiffs’ counsel and those to whom notice is properly directed.
A Few Words On “Interns”
As summer approaches, many companies plan on bringing aboard summer interns. In general, however, having legal unpaid interns is complicated and frequently gives rise to lawsuits like the Gawker case. Unfortunately, this important topic cannot be fully analyzed here. Note, however, that federal law is instructive, and the U.S. Department of Labor has published Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act that explains 6 factors all employers should review before bringing on interns. Furthermore, many states have additional and/or different requirements for a true “internship.” Employers would be wise to consult an employment attorney in their state before they get into a situation that could lead to legal liability.
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation. No attorney-client relationship is created via this website.