If you have ever checked your personal email while on the clock or picked up a text message on your personal phone, a case out of Florida portends of future trouble in the workforce for those using technology to catch up on non-work related business during working hours. The case also serves as a warning to graduating seniors entering the workforce in the very near future.
Many employers have recently noticed their employees, not studiously at work, while their fingers are moving across the keyboard on their personal devices. Have we ever thought that our employers could gain access to records we access during work time? This is in fact, a case where privacy just might not be privacy.
Recently, in the Southern District of Florida, an employer (the defendant) defended an employee’s right to overtime by objecting to the fact that during work hours the employee used MySpace, Facebook, Bank of America, AT&T Wireless and other Internet sites. The employer was defending an original claim in court filed by the employee (plaintiff) who was claiming a right to overtime payment. In the course of defending against the employee’s claim, the employer subpoenaed the records of these sites as evidence to the fact that the employee did not deserve overtime because he was not working during work hours. Keep in mind that with this case, we are talking about normal “checking in” on websites such as banking and personal information. None of the claim was to be considered offensive and/or vulgar.
There are 2 important questions for you to consider:
Does the employer have the right to access the personal records of an employee?
Does the employee have protection within the Right to Privacy to prevent an employer from his or her records?
For many who work in companies with offices or cubicles, we can admit that there is some freedom with our personal devices where employers do not oversee our every move. Personal devices are registered in our names with contracted privacy rights. Could an employer gain access to these rights because we are “on the clock”? With company equipment, do the rights and the issues change?
This case gets interesting because the employee plaintiff used “jurisdiction” as a defense (or maybe the judge just understood that he did not have jurisdiction over these documents). Since Facebook and MySpace (among others) were not located in the jurisdiction of the court (Florida), the judge maintained that he did not have jurisdiction to subpoena and the defendant was able to quash the subpoenas. The employee (the plaintiff) was able to defend his overtime pay justification by stating that IF the third party companies like Bank of America and AT&T texts were provided, the content would be exposed, including banking and personal information as well as phone records.
Here is the actual case.
JOHN MANCUSO, on behalf of himself and all others similarly situated, Plaintiff,
FLORIDA METROPOLITAN UNIVERSITY, INC. EVEREST UNIVERSITY, and CORINTHIAN COLLEGES, INC., Defendants. Case No. 09-61984-CIV-COHN/SELTZER. United States District Court, S.D. Florida. June 24, 2010.
Here are a few things we need to take from this case under “FLSA” “Fair Labor Standards Act.” Mr. Mancuso was attempting to certify a class action lawsuit, but in our concern over social and new media, this is secondary and he did not succeed. Our concern lies in who actually has the “right” to our records and does the time or place we access these records make a difference? Another concern we all might want to think about with liability, our personal information and our identity is “who” are the third parties that hold our private information and “how” and “when” could this be used against us?
The case gets into the details of how employees clock in, when the breaks are taken, and what is considered “work.” Secondly, how do you determine the minutes on the clock? Can you text a quick message without employer violation?
For the employer, how should the employee be notified? How should the case evidence be brought forward without invasion of the right to privacy? Are trace records on an employer’s equipment attainable to the employer – no matter an employer’s equipment attainable to the employer?
There is no doubt these are cases of “particulars.” We do not yet know all of the answers or the substantive law. Since we cannot predict or give you the answers, what we are emphasizing is caution. Furthermore, your state may have a big play in what is and what is not considered private. It would also be a good idea for you to warn your unsuspecting children, teens and graduating young adults, who may see nothing wrong with texting or accessing a quick glance at records during work when possible.
In this case, there was a partial decision on both parties. Normally, a person does not have the right to challenge a subpoena, however recently, the courts have held and upheld the fact that with private information like telephone records and banking, a person does have the right to privacy, under certain circumstances. Most of the time we manage these circumstances. However, note that with the social sites, this same protection cannot be found because you are making your information public.
The judge ruled that he had no jurisdiction of MySpace and Facebook sites, not because they were social media, but rather they were out of his jurisdiction. In the end, the employee did admit that he was not due all of the overtime that he claimed, but only after the employer proved he used company time for personal benefit.
What we do know is this: employers must be thoughtful in their employee demands so that an employee is not deemed “unreasonable.”
Pick up one or two text messages, and it’s probably not a problem – but 2-thousand obsessive-compulsive texts may present another issue!