Too Many People Using Social Media?

Well, maybe there aren’t too many people using social media in general. But, perhaps, that is the lesson to be taken from a recent federal court decision that addressed the intersection of one statute’s purpose and the reality of social media.

Back on October 20, 2014, I posted about a New York Family Court case in which the Judge allowed the use of Facebook to serve notice of a proceeding on another party whose whereabouts could not otherwise be located. Now, in the case of Mark v. Gawker Media LLC, a federal Judge in the Southern District of New York has issued a decision with a slightly different result in a slightly different set of circumstances.

Gawker Media is a wage and hour case that involved notice being sent to “similarly situated” individuals under the federal Fair Labor Standards Act (“FLSA”). Notices are typically mailed to individuals advising them of the nature of the case and their right to join the lawsuit if they choose to do so. Here, plaintiffs’ counsel apparently asked the court for permission to post notices on various social media web sites in an effort to supplement the traditional mailings and reach a potentially larger audience that might include individuals who could potentially “opt in” to the lawsuit. The problem was, however, the argument that the sites “might include” individuals.

The court noted that, while it would contemplate the use of social media as a means to contact potential parties, the request by plaintiffs’ counsel here was “substantially overbroad” and appeared to be “calculated to punish Defendants rather than provide notice of opt-in rights.” Said the court:

“Plaintiffs’ proposal to post notices on websites such as Reddit and Tumblr – and on pages such as “r/OccupyWallStreet” and “r/Progressive” – 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 the lawsuit whatsoever. The purpose of FLSA notice is to ‘notify and inform those eligible to opt in to the collective action’”

In other words, the FLSA notice provisions are designed to provide narrowly-tailored notice specifically to those individuals whose rights may be at issue and affected by a lawsuit, and to advise those individuals of their right to join. Simply putting word of the lawsuit out for the entire world to see (i.e., through social media sites of mass participation), with only a small subset of the world truly intended to get the notice and learn about the lawsuit, does not accomplish the goals of the FLSA and potentially prejudices the employer.

As the court made even clearer:

“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. This generally means that it expected the notice to contain private, personalized notifications sent to potential plaintiffs whose identities were known and [sic] may not be reachable by other means. To the extent that Plaintiffs’ proposals are shot through with attempts to send public-facing notices – such as general tweets rather than direct messages, or publicly accessible groups – they cease to parallel the other forms of notice that the Court has already approved. . . .  Accordingly, Plaintiffs’ request to put into action its proffered plan for social media notice is DENIED without prejudice to Plaintiffs proposing a revised plan that cures the current overbreadth issues.”

Employer Take Away:   What should you as an employer take away from this development?

Courts continue to grapple with the proper balance when it comes to the somewhat informal, yet widespread appeal of, social media in the context of lawsuits. Can (and should) social media be used to benefit the process in many circumstances? Yes. But can one’s plan to use social media in the process be too overbroad? Yes.

Just as we discussed in the context of the discovery of social media in lawsuits, the best way to persuade a Judge to fall on the side of allowing some social media plan into your company’s case is to demonstrate that your plan is narrowly-tailored and serves the underlying purpose of promoting judicial economy and obtaining information or access that could not generally (or easily) be obtained through other means. 

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“You’ve Got Served!”

Pardon my witty little play on “you’ve got mail!” from 1998.  Remember when that booming AOL voice – and what was the 50th movie teaming Tom Hanks and Meg Ryan – seemingly reflected the start of the Internet communication age?  But I digress.

As social media continues to permeate all aspects of our lives (legal and otherwise), courts continue to apply the unique realities of social media to traditional legal issues.  One that continues to come up involves the service of process (translation: serving a summons and complaint) at the start of a new lawsuit through a social networking site, rather than by personal delivery or nailing a package to a defendant’s door.

Virtually every state has a service of process statute like New York’s statute, which allows for personal service to be effectuated on a “natural person” in “such manner as the court . . . directs, if service is impracticable under paragraphs one, two and four of this section.”  In other words, a court is afforded the ability to be creative when a summons and complaint cannot be served by personal delivery, serving someone of “suitable age and discretion” at the defendant’s home or business, or by nailing and mailing.  What once may have been a potentially insurmountable hurdle at the start for a party filing a lawsuit, is now as simple a task as a click and send.

A New York Family Court Judge continued the trend toward allowing the very formal requirement of service of process to be accomplished through the very informal means of social media.  In Noel B. v. Anna Maria, the Court noted that the petitioner was unable to physically locate a spouse in the context of a child support proceeding, but knew that the spouse “maintains an active social media account with Facebook.”  After describing the nature and extent of social  media use today, the court granted the petitioner’s request to serve papers through social media:

“However, despite the absence of a physical address, the Petitioner does have a means by which he can contact the Respondent and provide her with notice of the instant proceedings, namely the existence of an active social media account. . . . [T]he Petitioner is to send a digital copy of the summons and petition to the Respondent via the Facebook account, and follow up with a mailing of those same documents to the previously used last known address.  The Respondent can receive communications via social media, whereas her actual physical whereabouts are uncertain.  The method detailed here by the court provides the best chance of the Respondent getting actual notice of these proceedings.” 

So even when you have not “added a location to post” on Facebook, you can still be found.

Employer Take Away:   What should you as an employer take away from this development?   

Oh yes, we must have an employment law takeaway.  So it is this: social media can be used for many different reasons these days in the context of a lawsuit involving individuals (employees) who regularly use social media and social networking sites for personal and business reasons.  Whether it is attempting to locate an employee or using pictures and postings against an employee, your company should take advantage of the various strategies involved with social media whenever there is an actual or potential conflict with one of your employees.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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