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Employee Does Not Have to Produce Facebook Posts in Action for Missed Meal Breaks

One of the first things I tell my clients is: Don't post anything about your job, your case, or your employer on Facebook or any other social media site, and don't write any posts during working hours. Why? Because that is the first thing your employer will ask for in discovery. They'll ask for your social media posts to embarrass you, and in the hope that your posting will say something that contradicts the allegations in your case. For instance, if you contend that you work 100 hours a week without overtime pay, and then write on Facebook "Out of work early—again!" you may have some explaining to do.

Now, on to Jewell v. Aaron's, Inc., the case of the employee/plaintiff who—you guessed it—posted on Facebook during working hours. Not a good idea, because he brought a Fair Labor Standards Act collective action against his employer, Aaron's Inc., for forcing him and other similarly situated employees to work through unpaid lunch breaks. His employer received "anonymous information" that the plaintiff often made postings on Facebook during working hours. Although there was no indication that the plaintiff had written anything about his job or his case, his employer seized on this opportunity and requested from him—and 87 other opt-in plaintiffs who were participating in discovery—all statements made on any social media site during working hours.

By doing this, the employer hoped to get hold of posts that would show the employees were, in fact, taking lunch breaks.

Luckily for the plaintiff and the 87 opt-in plaintiffs, the court struck the defendant's request. In discovery, a party can ask for a very broad universe of information, but all of that information must be reasonably calculated to lead to the discovery of admissible evidence. There has to be some showing that the information sought will be relevant and will be allowed in at trial, or that it will lead to evidence that is allowed into a trial.

Here, the employer couldn't make that showing. The employer merely speculated—that the Facebook posts of employees "may" show they were taking lunch breaks, that "it is likely" that many of the opt-in plaintiffs have made posts—and that was not enough to show that the defendant sought information that was reasonably calculated to lead to the discovery of admissible evidence. Rather, the court stated that the employer's request for every social media posting by 87 plaintiffs over a four year period was supported by nothing more than "hope that there might be something of relevance" on the plaintiffs' social media accounts.

Also, the court noted, a social media posting, even during working hours, may not show whether an employee actually took a meal break as defined by applicable law.

The court also examined the burden that would be placed on the plaintiffs and their attorneys, and found it did not justify the "remote relevance" of the information the defendant sought. Specifically, the plaintiffs argued that they, and their attorneys, would have to spend "anywhere from 1,323 hours to 26,642 hours" looking through social media postings to determine whether they were made during working hours and then producing all of those postings.

In my opinion, this is one of the better social media rulings for plaintiffs to come out. According to the court in Jewell, "courts have recognized that social networking site content may be subject to discovery," and, generally social media postings are not privileged or protected by any right of privacy.

As an example, in one case, Davenport v. State Farm, the plaintiff in a personal injury case had to produce pictures of herself appearing on any social media site since she was injured, regardless of who took the pictures. The reason for this was that the plaintiff had put her quality of life in issue as part of the case (in other words, she argued that the quality of her life had diminished since her accident) and pictures of the plaintiff having fun at a club might negate her position.

The Jewell case may have come out differently if the plaintiff had posted something about a meal break at his job, rather than just posting during working hours as he did. For instance, if he had written that he was on his lunch break and it was a beautiful day outside, the court may have required him, and the other plaintiffs, to produce their postings. The reason for that is the defendants would have offered more than "hope."

One last thing to remember from Jewell: you should never expect any privacy in your social media postings. Even if you set your Facebook profile to the highest level of privacy, someone who is your Facebook "friend" has access to your information and can share it. And even if that doesn't happen, your employer, in litigation, may be able to get a court order requiring the disclosure of anything you wrote regardless of privacy settings. Judges have very broad discretion with discovery, and nothing would prevent a judge who is more sympathetic to employers from coming to the opposite conclusion of that reached in Jewell.

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