The use of social media has become ubiquitous in our society. The Pew Research Center found that as of January 2014, 74 percent of internet users utilized social networking sites, and 89 percent of online adults between the ages of 18 and 29 used such sites. A March 5, 2015 decision of the U.S. District Court for the Southern District of New York addressing the use of social media to provide notice of an FLSA suit to potential opt-ins provides a glimpse into what may be the dawning of a new era in employment collective and class actions.
Gawker Media, an online media company and host for a variety of popular weblogs, was sued by unpaid interns who alleged that they performed functions similar to paid, nonexempt staff and should have been treated as employees and paid minimum wages under the FLSA. The district court conditionally certified their collective action. On November 3rd of last year the court approved the use of “social media to provide potential plaintiffs with notice that mirrors the notice otherwise approved by the court,” subject to the court’s further approval of the form and content of the notice.
The company’s failure to maintain complete information as to the interns’ names and addresses contributed to this preliminary approval. High usage of social media by young people, however, also played a part, as the court cited the Pew poll and found it likely that the vast majority of interns working on blogs “have at least one [social media account], if not more.” Judge Alison J. Nathan’s decision appears to be the first time a court approved the use of social media to provide such notice.
On March 5, 2014, after considering the interns’ proffered plan for providing notice, the court effectively unfriended their request for social media notice as “substantially overbroad.” It denied the request without prejudice to the proposal of a “revised plan that cures the current overbreadth issues.”
The court observed that much of the proposal “appears calculated to punish” the company “rather than provide notice of opt-in rights.” The proposal to post notices on websites such as Reddit and Tumblr and on pages such as “rOccupyWallStreet” and “rProgressive,” the court said, “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 material connection” to it.
The court also found the interns’ proposed use of Twitter, LinkedIn, and Facebook was overbroad. The court said that it expected the social media notice to contain “private, personalized notifications” sent to potential plaintiffs “whose identities were known” and “may not be reachable by other means.”
To the extent that the proposals are “shot through with attempts to send public-facing notices” such as using publicly accessible groups or sending general tweets rather than a direct message, the court declared, they “cease to parallel other forms of notice the court has already approved.” It rejected the analogy to a broad, consumer class action, noting this this case involves “a fixed universe of former Gawker interns.” The court denied the interns’ plan for social media notice, without prejudice to the interns “proposing a revised plan that cures the current overbreadth issues.”
What does Gawker Media LLC tell us about the future of social media notice in employment actions? What are the lessons for employees’ and employers’ counsel?
This case will certainly not be the last to confront new issues dealing with class notice and social media. As social media use increases, we can expect more proposals from employees’ attorneys to use it to provide class notice. It might very well be a means of increasing class size, particularly among younger persons.
Credible data regarding the prevalence of social media may help any plan to incorporate it. 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. 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.
The case also illustrates the need for employers to maintain adequate records of employees’ traditional contact information in order to bolster arguments that traditional means of notice are adequate. Defense counsel will also need to identify and emphasize the “public-facing” aspects of a proposal.
As proposals for the use of social media to provide notice increase, we will see more courts try to balance the need for effective notice to absent class members who may not be reachable by traditional means with the need to protect defendants from the punitive aspects of social media.
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