I’ve often said that the definition of “plaintiff” in a lawsuit can be simply stated as a “pissed off employee.” The old cliché that “a happy employee equals a productive employee” still rings true, but that is only part of the equation. It’s not always the case, but, more often than not, the better you treat and communicate with your employees, they will not only be more productive but also less “pissed off” and, therefore, less likely to want to sue (or be persuaded to sue).
We spend so much time in this blog talking about being mindful of social media from the standpoint of what your employees are doing and saying on social media. It is also important to consider what other characters in the employment law theater – attorneys seeking to represent (your) employees – are doing with social media. That is, in many cases, attorneys are using LinkedIn and other social networking sites with increasing frequency to look for disgruntled employees who might be willing to start a lawsuit, and to communicate with potential class/collective members about those cases.
We know that the number of wage and hour lawsuits filed each year continues to go up. Though they are not impossible to properly defend, they are difficult cases for many companies because the class and collective nature of these suits leads to a tip of the settlement leverage scales and the potential for exponentially large damages, and because they are often premised on very strict, technical rules about which even good-intentioned employers are not even aware. So companies in your and other industries continue to increase the litigation budget to address the “old” claims that are still being filed (e.g., unpaid overtime, off-the-clock work, independent contractor and exemption misclassification), as well as some of the newer, more trendy claims (regular wage rate calculation, internships, state law claims like New York’s spread-of-hours requirement). Wage and hour lawsuits are not going away any time soon. You heard it here first.
And social media is being used in so many ways. Your employees are regularly communicating their wage and hour gripes on social media (empowered, as you know, by the NLRB), and are also using social media to quickly learn about their “rights” from various federal, state and local government entities who provide a wealth of easily-accessible information that often times is incomplete or rife with legalese not understandable by the average employee. Remember that other cliché “a little bit of knowledge is dangerous?” Once your employees post comments and discussions about wage and hour issues on social media, it is not difficult for them to be found by attorneys who are looking for them, and ultimately not difficult to get your employees on board with suing your company for thousands and maybe millions of dollars.
Not so unrelated, as I have recently updated on Twitter (shameless plug: @MSchmidtEmpLaw), the United States Department of Labor will soon be announcing proposed new regulations that are expected to dramatically impact the white collar overtime exemptions that have been changed only once since the 1930s (“What is 2004, Alex?”). Getting it right when it comes to your company’s wage and hour obligations is not only a good idea because it is the law. It is a good idea because you may then also be less vulnerable to legal solicitations of your employees through social media.
Employer Take Away: What should you as an employer take away from this development?
Plain and simple: Some attorneys are using social media to find employee clients to sue you. You can’t completely eliminate the risk, but you might be able to minimize it:
1. If you are not already, be cognizant and sensitive to the fact that employees can use and are using social media to gripe about unfair and unlawful pay practices. Those comments can be viewed by just about everyone, including lawyers having an easy time locating and communicating with your employees.
2. If you become aware of a wage and hour concern raised by one of your employees through social media, take it seriously. Do not discard in the misguided belief that informal social media complaints don’t count.
3. Train, train, train your managers (and yourself) to understand and comply with your company’s wage and hour obligations under federal law, and under the oft-forgotten state and local law. That way you can marry your good intentions to some lawful results, and also create happier employees who are less susceptible to wanting to be found and sue you.