Employee Use of Personal Technology at Work — What’s Discoverable?


Employee Use of Personal Technology at Work — What’s Discoverable?

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By Kelly Twigger

With the advent of smartphones and personal tablets, people can do anything from check social media posts, listen to podcasts, and even deposit checks straight from their phones.

Though most people have these items on their person almost all of the time, it doesn’t always mean that they are using them when they aren’t supposed to. For example, when you go to work, you probably check to see if you have a new Facebook post or text message before sitting down at your desk, and play or text on your phone during breaks and lunches. This is normal. Having a smartphone and checking posts and tweets on break does not mean that you are not doing your job. Yet some employers are trying to say that whenever you are doing any of the above-mentioned convenient or fun things you are not working.

In Palma v. Metro PCS Wireless, Plaintiffs, former employees, brought suit under the Fair Labor Standards Act against Defendant, their former employer for unpaid overtime wages.  Palma v. Metro PCS Wireless, Inc., 2014 WL 1877578 (M.D. Fla. 2014). Defendant’s motion to compel was the subject of this case. The motion to compel sought all of Plaintiffs’ social media posts from 2010 to the present that relate to:

“any job descriptions or similar statements about this case or job duties and responsibilities or hours worked which Plaintiffs posted on LinkedIn, Facebook, or other social media sites,” and “records of Plaintiffs’ banking, credit and debit card transactions, telephone activity, and travel.”

And here is Defendant’s reason why Plaintiffs aren’t entitled to the overtime compensation they seek:

“because [posts] are party admissions regarding plaintiff’s job duties, responsibilities, and/or hours worked at Defendant.”

The Defendant is arguing that any time a social media post, phone call, text, or personal banking session that occurred at any time that any plaintiff was at work, that does not count as work and they should not be compensated for that time.

One problem with this argument is that it doesn’t take into account breaks and lunches. The even bigger problem is that, as the court stated, Defendant “does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.”

Defendants are just trying to grasp at straws with this motion and because of that, the court found that Defendant did not meet the Rule 26(b)(1) threshold showing that the request was “reasonably calculated to lead to the discovery of admissible evidence” and denied the motion as being too broad.

Unless it is relevant to the case, employee information such as social media posts and telephone activity remain private.

Kelly Twigger is the Founder and CEO of eDiscovery Assistant, and a nationally recognized eDiscovery attorney with ESI Attorneys. Kelly’s passion is teaching attorneys and legal professionals how to create and implement effective discovery strategy with ESI from the earliest stages of a matter through trial. She created eDiscovery Assistant for use in her firm and has been ecstatic to watch it grow into the go-to tool for U.S. eDiscovery case law and reference material across the United States and internationally.

This article was originally posted on ediscoveryassistant.com and is shared here with full permission from the author.

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