Employers and Employees Beware of Workplace Social Media!

Employers and Employees Beware!

This is an interesting case of privacy with social network sites where the plaintiff represented himself pro se.  We state that because it is impossible to know what legal issues could have been potentially brought forth by knowledgeable counsel to change the outcome of the case.

Recently in the Southern District of Florida an employer (the defendant) defended an employee’s right (the plaintiff) to overtime by objecting to the fact that during work hours the employee used MySpace, Facebook, Bank of America, AT&T Wireless and other Internet sites.  The employer was defending an original claim in court filed by the employee who was claiming a right to overtime payment.  The employer subpoenaed the records of these sites, including AT&T as evidence to the fact that the employee did not deserve overtime because he was not working at work during clock hours.

Keep in mind that with this case we are talking about normal “checking in” on sites and banking and personal information and none of the claim was to be considered offensive or vulgar.

So where is the line drawn?  Does the employer have the rights to access the records of an employee?  Does the employee have protection within the First Amendment or the Right to Privacy?

For many who work in companies with offices or cubicles, we can admit that there is some freedom with our personal devices where employers do not oversee our every move.  Personal devices are registered in our names with privacy rights.  Could an employer gain access to these rights because we are on “the clock”?  With company equipment, do he rights and the issues change?

This case gets interesting because the employee plaintiff used “jurisdiction” as a defense (or maybe the judge just understood that he did not have jurisdiction over these documents). Since FaceBook and MySpace (among others) were not located in the jurisdiction of the court (Florida) the employee would be unable to defend the subpoenas from being issued to those companies.   However, the employee (the plaintiff) was able take defend his overtime pay justification by stating the IF the third party companies like Bank of America and AT&T texts were provided that the content would be exposed, including banking and personal information as well as phone records.

JOHN MANCUSO, on behalf of himself and all others similarly situated, Plaintiff,


Case No. 09-61984-CIV-COHN/SELTZER.

United States District Court, S.D. Florida.

June 24, 2010.

Here are a few things we need to take from this case, “FLSA” “ Fair Labor Standards Act.”  Mr. Mancuso was attempting to certify a class action lawsuit, but in our concern over social and new media, this is secondary.  Our concern lies as to who actually has the “right” to our records and does the time or place we access these records make a difference?  Another concern we all might want to think about with liability and our personal information and identity is “who” are the third parties that hold our private information and “how” and “when” can this be sued against us?

The case gets into the details of how employees clock in, when are the breaks, what is considered “work.”  Secondly, how do you determine the minutes on the clock?  Can you text a quick message without employer violation?

For the employer, how should the employee be notified?  How should the case evidence be brought forward without invasion of the right to privacy?  Are trace records on an employer’s equipment attainable to the employer – no matter what?

No doubt these are cases of “particulars.” We do not yet know all of the answers or the substantive law.   What we are emphasizing is caution, since we cannot predict or give you’re the answers and further your state may have a big play in what is and what is not private.

In this case, t here was a partial decision on both parties.  Normally, a person does not have the right to challenge a subpoena, however recently the courts have held and upheld the fact that with private information like telephone records and banking a person does have the right to privacy.  However, with the social sites this same protection could not be found.

The judge ruled that he had no jurisdiction of the MySpace and Facebook sites not because they were social media, but rather they were out of his jurisdiction.  In the en the employee did admit that he was not due to all of the overtime that he claimed.

What we do know is this.  Employers must be thoughtful in their employee demands in order that an employee is deemed “unreasonable.”

Pick up one or two texts – probably not a problem – 2,000 obsessive-compulsive texts another issue!