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SDNY Judge Permits Use of Social Media to Notify Potential Opt-In Plaintiffs of Conditionally Certified Collective Action by Unpaid Interns

On December 29, 2014 by Schnader in Labor and Employment

By Scott J. Wenner

In an unpublished ruling last month, Federal Judge Alison Nathan of the U.S. District Court for the Southern District of New York granted the request of counsel for a putative class of unpaid interns to use social media to target potential opt-in plaintiffs. The action, Mark v. Gawker Media LLC, is a challenge under the Fair Labor Standards Act (FLSA) to the unpaid status of interns at Gawker Media.

Judge Nathan’s order permitting the use of social media was part of her post-conditional certification ruling on the process to be followed to notify those eligible to join the class of their right to do so. Unlike “opt-out” class actions, incollective actions authorized by the FLSA, potential class members must affirmatively choose to join the class. Obviously, they cannot do so if they are unaware of the pending class action. Collective actions, particularly in industries with youthful workforces, often fail to attract even half those eligible to join because, many believe, of the difficulty of providing notice through more traditional means such as U.S. mail.

The parties agreed to a form of notice to be provided by U.S. Mail, and also via stand-alone websites that would permit putative class members to download and submit consent forms electronically. Counsel for the putative class asked the court also for permission to use dedicated social media pages on sites such as Facebook, Twitter and LinkedIn whose names would match the URLs of the stand-alone websites. In determining this method to be effective, the court relied on a Pew Research Center study finding that “the vast majority [of current and former interns] likely have at least one [social media] account, if not more.“ (See “Social Networking Fact Sheet,” The Pew Internet Project.) Judge Nathan also brushed aside Gawker’s objection that use of social media sites would cause it to lose control over messaging to class members, noting the court’s limited role of assuring fairness and accuracy of communications to class members. She found Gawker’s concern to be more focused on discussions between potential class members, which she viewed as beyond the court’s role.

Class counsel did not cite any case law to support its request and Judge Nathan’s order also cited no legal authority. It is fair to anticipate, however, that the use of social media as part of the notification process, at least in opt-in collective actions, will be more routinely requested in the future.