As the implications of using social media in the workplace continue to loom large, not surprisingly, how such use affects information-gathering in employment law cases is gaining attention. Among the questions raised: In an employment-law dispute, can an employer subpoena an employee’s Facebook account as part of its evidence gathering?
Yes, but with restrictions. Employers seeking information about an employee’s use of social media in the workplace must write their subpoenas narrowly, said the U.S. District Court for the Southern District of Florida. The court restricted MySpace, Facebook, AT&T and Bank of America subpoenas, finding that the employer’s subpoenas were overly broad and did not protect the employee’s privacy interests.
The case, Mancuso v. Florida Metropolitan University, 2011 WL 310726 (S.D. Fla. Jan. 28, 2011), resulted after Mancuso (the employee) filed FLSA charges for back overtime wages. ) To contest the amount of back wages actually owed (if any), the university subpoenaed MySpace, Facebook, AT&T and Bank of America to find out how much time Mancuso spent at each of those sites during the workday.
Normally, a party does not have standing to challenge a subpoena served on a non-party. However, when the challenger has a personal right or privilege regarding the subject matter of the subpoenaed material, then he or she can be permitted to challenge the subpoena.
In Mancuso, because the subpoena was so broadly written (it requested access to all of his accounts and would have displayed highly sensitive information ranging from bank account numbers and contents to the contact information of his friends), Mancuso had a personal privacy right to the sensitive information. The court rewrote the subpoenas in a way that protected Mancuso’s privacy interests but also gave the university the information it sought.
It is not unlawful for an employer to request information from third parties about an employee’s use of their service — such subpoenas are issued all the time. The problem with these particular types of subpoenas is what to do with sensitive information like the substance of text messages, emails or finances. Employers should remember that they generally are not entitled to view employees’ personal emails or messages. In Mancuso, the University erred by requesting such broad subpoenas. Instead, it should have drafted its subpoenas narrowly, in order to get just the information it wanted (the times at which the sites were accessed and how long Mancuso spent at each site while at work). Had the university properly drafted its subpoenas to account for the sensitive nature of the information, it might have saved itself the time and money needed to argue over these subpoenas.
For more information on unique issues in FLSA overtime cases, please see Thompson’s Employer’s Guide to the Fair Labor Standards Act.