In what could be the beginning of a new era in employment collective and class actions, the Southern District of New York has approved the use of social media as a mechanism to notify potential class members in a wage and hour dispute Mark v. Gawker Media LLC, 2014 U.S. Dist. LEXIS 155424 (Nov. 3, 2014 S.D.N.Y.). The named plaintiffs, two former unpaid interns for blogs run by Gawker, initially filed the class action suit in 2013. Plaintiffs claim that Gawker violated the Fair Labor Standards Act and New York wage laws by misclassifying them as interns instead of employees, and that Gawker therefore impermissibly failed to pay them at least minimum wage. Traditionally, class notification is a court‑approved notice sent via U.S. mail to potential class members. Because the potential class members were unpaid interns, Gawker did not have complete contact information – traditionally names and mailing addresses – which necessitated an alternative class mechanism.
Now that the court has decided social media can be used, the parties are presenting plans regarding the extent of the tweets, posts and blogs. Plaintiffs took the order and ran with it, proposing use of Twitter, LinkedIn, Reddit, Facebook, and Tumblr. Not surprisingly, Gawker took particular issue with the plan’s potential to reach potential class members multiple times using different social media sites, and to encourage back‑and‑forth exchanges between potential class members and plaintiffs’ counsel. Regarding Twitter, Gawker balked at the plaintiffs’ proposed use of multiple hashtags, and was especially concerned with “inflammatory” hashtags such as #fairpay and #livingwage. Gawker also objected to plaintiffs’ counsel sending announcements with reminders to group members on LinkedIn, and it requested that the court deny any use of Tumblr or Reddit (“Plaintiff’s plan with respect to Reddit is calculated less to reach potential collective members than to connect this lawsuit with unrelated controversies and political causes.”). Although Gawker did not object to creation of a Gawker Intern Lawsuit Facebook page, it objected to plaintiffs’ request to add prospective plaintiffs as “friends.”
The New York federal court has not yet issued a ruling on the boundaries plaintiffs must adhere to in using social media. Nonetheless, the court has already made clear that social media is not off-limits in reaching potential class members, especially where employers do not have complete contact information. This case illustrates the need for employers to retain adequate records of employees’ and interns’ traditional contact information.