Employees’ social media posts and GPS data are off limits for employers fighting claims that they failed to pay overtime, under a recent ruling by a federal district court judge in Indiana.
The decision came after Angie’s List sought to obtain this private information from employees who had filed suit under the Fair Labor Standards Act (FLSA), claiming that they regularly worked 10- to 12-hours a day but were only paid for eight hours a day and 40 hours a week. The employee plaintiffs were sales representatives who worked with service providers who bought advertising on the Angie’s List website.
The company wanted access to GPS or location services data from the plaintiffs’ personal cell phones so they could “construct a detailed and accurate outline of when Plaintiffs were or were not working.” They also wanted to see any email messages, social media posts and other online communications relating to “absences from or attendance at work.”
The judge ruled that the employees’ right to privacy outweighed the value of the information in determining how many hours the employees had worked. Employees frequently had to work outside their office hours because their clients were located in different time zones, so their location would not be a reliable indicator of whether they were in fact working, the court pointed out. The judge also said that forcing employees to turn over emails and social media posts was too intrusive, because it would require employees to reveal information about personal vacations and social outings not relevant to the case.
Finally, the judge concluded that the employer already had access to less personal information that would better establish when employees were working, such as cell phone call records, and computer login and badge swipe data.
Employees seeking fair payment for their overtime hours do have to provide some documentation to show that they worked beyond 40 hours a week, but they can’t be required to turn over personal information about their lives outside of working hours. If you believe you haven’t been fairly paid for your overtime hours, contact the Employment Litigation Attorneys at Sommers Schwartz to discuss your case.
