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The Employer Handbook Blog
As a social-media-nerd employment lawyer, this one has me shakin’ my head.
In Pennsylvania, the Rules of Professional Conduct require that an attorney must stay abreast of changes in changes in the law, including the benefits of advances in technology.
LinkedIn was founded over 10 years ago. If you’re reading this and you are not familiar with LinkedIn …
I mean, geez. For a litigator, it’s absolutely essential. And I’m not even talking about having a LinkedIn profile.
I’m talking about researching the plaintiff.
Case in point, a Fair Labor Standards Act matter where the issue was whether the plaintiff was exempt from the Act’s minimum wage and overtime requirements under the administrative exemption. Among other things, this exemption requires the employer to prove that the employee’s “primary duty” is the “performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers.”
In this particular example, the court denied the employer’s motion for summary judgment on this FLSA exemption issue. But, subsequently, the defendants investigated the plaintiff’s pages on LinkedIn and Shiftgig, and claimed to have ascertained that the “plaintiff’s social media profiles contain representations that are inconsistent with statements that she made in opposition to their motion for summary judgment.” So, the defendants moved for reconsideration.
Wow! In a case where the plaintiff’s job duties were squarely at issue, the defendants waited until after the court denied their motion for summary judgment (and after filing their motion for summary judgment, and after discovery, and so on…) to investigate the plaintiff’s online professional network profile.
Why did the defendants wait so long?
Shame. Indeed, the court seemed to be asking the same question (what took you so long?) when it denied the defendants’ motion for reconsideration:
Even if plaintiff’s online presence differed materially from the summary judgment record, defendants have not explained why plaintiff’s social media accounts were unavailable. A motion to reconsider is an inappropriate vehicle to advance “supporting facts which were available at the time of the original motion.” Defendants state that they did not investigate plaintiff’s social media accounts until “receipt of the Court’s Order,” and neither explain their failure to do so previously nor provide any information – such as the date on which the relevant social media profiles were published – that shows that the accounts were not available at the time defendants moved for summary judgment. Defendants’ failure to demonstrate that their motion is based on previously unavailable evidence is an independent basis to deny reconsideration.
The takeaways.
Employment lawyers: If your client gets sued in a workplace-related action, you owe it to the client to explore the plaintiff’s social media. In a discrimination case, for example, a plaintiff’s social media postings may indicate that she is not in (pain and) suffering in the way that she claims to be in her complaint. Or maybe, you learn that her mitigation effort are not as diligent as she led you to believe during deposition.
And if you represent the plaintiff, are you just going to take your potential client’s word? How could you not vet your client on social media? (Especially because you know that people like me will…)