When a plaintiff claims that she was not paid for overtime hours worked for an employer, can the employer request all of the plaintiff’s social media activity to prove she was not working?

Can Employers Use Social Media Activity to Prove Laziness in the Workplace?

Can an employer on the hook for unpaid overtime request every social media post made by an employee during a three-year period in order to show that the employee was working on her electronic image instead of selling country club memberships? In Artt v. Orange Lake Country Club Realty, Inc., No. 6:14-CV-956-ORL-40, 2015 WL 4911086 (M.D. Fla. Aug. 17, 2015), the United States District Court in the Middle District of Florida held that a request for all of the plaintiff’s social media was over broad, unduly burdensome, and unreasonable.

The discovery requests at issue were “(1) All online profiles, postings, messages (including, without limitation, tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams, and blog entries), photographs, videos, and online communications that you posted on any date between June 19, 2011 and your last day of employment with Orange Lake [and] (2) Any and all information contained in your Facebook, MySpace, Instagram, Linkedln or other social networking account that you posted at any time between 7:00 am and 7:00 pm on any date between June 19, 2011 and your last day of employment with Orange Lake.”

The employer argued that the information to be provided by three years’ worth of social media activity was relevant to show when she was engaging in non-work related activity, not that she was engaging in non-work related activity.  The employer tried to show that its request was reasonable by limiting its request to the three-year statute of limitations for FLSA claims and by only asking for electronic information generated during the typical hours that the plaintiff, Artt, claimed to have worked overtime.

The court, however, was not impressed by the employer’s alleged “narrowing” of the huge requests, and found that granting its motion to compel would require Artt to produce documents for 69 weeks where she did not even allege to have worked overtime. The court was similarly not persuaded that the employer provided, with its discovery request, instructions on how to retrieve the information from Facebook and other social media sites.

Quoting another Middle District of Florida case, the court found that the employer “[did] not have a generalized right to rummage at will through information that Plaintiff has limited from public view.”  See Davenport v. State Farm Mutual Auto. Ins. Co., No. 3:11–cv–632–J–JBT, 2012 WL 555759, at *2 (M.D.Fla. Feb. 21, 2012).  While social media posts may have some relevance to a plaintiff’s claim that she is due unpaid overtime (because the employer is seeking to show that she was not in fact working during the alleged unpaid time), requesting every iota of activity from a three year period will likely be found to be an overbroad and impermissible electronic fishing expedition.

 

Angela Raleigh is a third year law student at Seton Hall University School of Law.  She attended Montclair State University, graduating summa cum laude, and owes her interest in law to her late great-uncle, Michael Mastrangelo, who let her “work” in his law firm at age four.

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