“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.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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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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