The rise of social media has recently altered several areas of the law, including class and collective action litigation. In 2013, a group of former interns sued Gawker Media, an online media company and weblog network, claiming it had violated the Fair Labor Standards Act (FLSA) and New York State Labor Law by failing to properly compensate its interns the minimum wage. The class became conditionally certified in August 2014. In collective action lawsuits, notice is traditionally given via mail to potential class members. In November 2014, the court permitted the Plaintiffs to propose forms of notice which included the use of social media. In April 2015, Judge Allison Nathan approved the Plaintiff’s notice plan.
The plan allowed for potential plaintiffs (former Gawker interns) to be notified via Facebook, Twitter and LinkedIn. The Plaintiffs asked the court for permission to “follow” the former interns on Twitter so they could send them a direct private message. They also wanted to “friend” former interns on Facebook so that they could send a direct message that did not go automatically to spam; they also requested to send “InMail” messages to former interns on LinkedIn. The Judge’s Order approved the requests, setting two conditions: 1) the plaintiffs “unfollow” any former intern on Twitter if the intern does not opt in by the set deadline; and, 2) the plaintiffs were not allowed to “friend” individuals on Facebook “as it could create a misleading impression of the individual’s relationship with plaintiffs’ counsel.” The Judge denied the request to send email notices to a mass list of intern applicants which may or may not include individuals who actually worked as interns. The Judge denied the Plaintiffs’ request to notify potential opt-ins by posting notices on social media sites such as Tumblr and Reddit, as it would be merely advertising the suit to the general public instead of notifying a specific group about their rights.
The purpose of FLSA notice is to advise putative plaintiffs of their rights in a lawsuit. The purpose is not to advertise the alleged violations of the employer and publicize the lawsuit. While many critics point out using social media to provide notice poses a higher risk of unnecessary publicity, this form of notice is quickly gaining popularity. Courts must properly restrict how social media is used to notify potential plaintiffs in class and collective action litigation.