In an August 1, 2019 post titled “Without Proper Enforcement, Even the Strongest Social Media Policies May Not Protect Employers,” we discussed how enforcement of corporate social media policies was paramount to protecting employers from liability stemming from employee violations of that policy. That post discussed how employers must take care not only to formulate comprehensive social media policies, but also to provide thorough training and ensure rigorous enforcement of those policies to its employees and managers.
In keeping with that theme, this article examines a specific illustration of the importance of maintaining and enforcing corporate social media policies. In a recent class action in U.S. district court in California, a company sought to use records of employee cell phones and social media accounts to establish the amount of time the employees spent on personal communications or on break after passing through security. The company had a policy requiring all hourly employees to store their personal phones in lockers or in their cars before passing through security. The company aimed to use these records to refute the employees’ claims that they were denied meal and rest breaks, and worked hours for which they were not paid throughout their entire employment.
Plaintiff objected to the request and refused to produce the records; forcing the company to request a court order mandating the production of the records. The court ultimately found that the records were germane to assessing the merits of the employees’ claims. The court also rejected an objection on the basis of the employees’ privacy, provided that the company agreed to allow for redaction of cell phone numbers and other distinguishing information.
This case illustrates how a clear policy prohibiting use of a cell phone during work hours, coupled with enforcement, can provide a company with an avenue for limiting its liability in wage and hour class actions should such claims arise.
