One of the difficulties employers face in defending wage and hour lawsuits alleging “off-the-clock” work is how to prove a negative. For example, the employees say, “We worked during our lunch breaks,” and the employer says, “No they weren’t.” The trick, however, is how to prove that negative.
Could social media provide some help? If employees are posting to Facebook, Twitter, etc. at times during which they claim to have been working, can an employer argue that the posts help establish that the employees could not have been “working” during those times?
In Jewell v. Aaron’s, Inc. (N.D. Ga. 7/19/13) [pdf], the employer attempt to make that exact argument. To help prove its claim that the employee-class members did not work through their lunch breaks, Aarons sought an order compelling the production of the plaintiffs’ social media activities “during their working hours.”
Despite the limited nature of the request to “working hours” only, the district court still rejected this request:
Even though certain social media content may be available for public view, the Federal Rules do not grant a requesting party “a generalized right to rummage at will through information….” Defendant has not made a sufficient predicate showing that the broad nature of material it seeks is reasonably calculated to lead to the discovery of admissible evidence…. The exemplar evidence of Kurtis Jewell’s Facebook activity does not persuade the Court that the Facebook postings will show, contrary to Plaintiffs’ claims, that they were not forced to work through their meal periods. The Court agrees with Plaintiff that whether or not an opt-in plaintiff made a Facebook post during work may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period….”
If this employer was merely guessing that there might exist something useful in the plaintiff’s Facebook account, I would have a easier time understanding the Court’s belief that the employer was fishing. This employer, however, was relying on actual time-stamped examples from the lead plaintiff’s Facebook profile [pdf].
I applaud this employer’s attorneys attempted creative use of social media to defend this wage-and-hour claim, and am troubled by this Court’s unfair hamstringing of that effort.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or firstname.lastname@example.org. You can also follow Jon on Twitter @jonhyman.