Tag Archives: Administrator’s Interpretation No. 2010-2

S.D.N.Y.: Following Conditional Certification, Court Permits Notice Via Social Media

Mark v. Gawker Media LLC

As is often the case, in its order granting plaintiff’s motion for conditional certification and to permit notice, the court in this case ordered the parties to confer regarding the terms of the proposed notice, the length of the notice period, and the means of transmitting such notice. Of note here, the plaintiff requested several alternative means of notice, including posting at defendant’s physical office, requiring that defendant post the notice on its blogs and/or websites, and that plaintiff be permitted to post copies of the court-approved notice on dedicated social media sites. Although the court denied some of plaintiff’s requests in this regard, it granted plaintiff’s request that he be permitted to transmit the notice via social media.

Discussing this issue the court explained:

Plaintiff’s final request is to use social media to target potential plaintiffs. They want to use dedicated social media pages entitled “Gawker Intern Lawsuit” or “Gawker Class Action”—names that match the URLs of the websites that the parties agree will be used to provide notice—on sites such as Facebook, LinkedIn, and Twitter.

Defendants argue, first, that there is “no evidence here that any former Gawker intern uses Twitter or could reasonably be expected to receive notice in that way,” and second, that creating social media pages would “deprive[ ] the Court of control over the message delivered to potential collective members.” As to the former argument, the Court finds it unrealistic that Defendant’s former interns do not maintain social media accounts; the vast majority likely have at least one such account, if not more. As to the latter, the Court exercises control only over the materials prepared and sent by the parties, not over the discussion that takes place by and among potential class members after notice is sent. The Court’s inability to control “discussion of the lawsuit” on social media sites, as Defendants put it, is no different from the Court’s inability to control two potential plaintiffs’ discussions of the lawsuit in person, by telephone, or even on a social media page that could be created by such a person without the parties’ intervention. The Court’s role is to ensure the fairness and accuracy of the parties’ communications with potential plaintiffs—not to be the arbiter of all discussions not involving the parties that may take place thereafter.

In a footnote, the court explained that its ruling was supported by the widespread use of social media by 18-30 year olds, the same group who comprised the putative class:

The Pew Research Center notes that as of January 2014, 89% of 18—to 29–year–olds use social networking sites. See “Social Networking Fact Sheet,” The Pew Internet Project, http://www.pewinternet.org/fact-sheets/social-networking-fact-sheet/ (last accessed Oct. 31, 2014).

Thus, the court concluded:

To the extent Plaintiffs propose to use social media to provide potential plaintiffs with notice that mirrors the notice otherwise approved by the Court, that request is granted. Before disseminating any notice by social media, the Plaintiffs shall confer with Defendants over the form and substance of any proposed social media postings, and submit to the court a joint letter describing the postings and any disputes about their contents that the parties cannot resolve themselves. The disputes already settled in this order—for example, the prohibition on the use of Defendant’s logos-shall govern any social media notice as well…  Plaintiffs may send notice via social media sites, subject to the Court’s further approval of the form and content of such notice.

Click Mark v. Gawker Media LLC to read the entire Order.

1 Comment

Filed under Collective Actions

203(o) Does Not Extend To PPE Worn By Employees That Is Required By Law, The Employer Or Due To The Nature Of The Job; Changing Clothes May Be Principal Activity, Starting Continuous Workday, Says DOL

Administrator’s Interpretation No. 2010-2

Today, the DOL issued its second Administrative Interpretation of 2010.  The subject of this interpretation was the oft-litigated issue of the definition of “clothes” under 29 U.S.C. 203(0), which has been the subject of countless so-called “donning and doffing” cases. 

Significantly the DOL concluded that:

(1)  “Based on its statutory language and legislative history, it is the Administrator’s interpretation that the § 203(o) exemption does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job. This interpretation reaffirms the interpretations set out in the 1997, 1998 and 2001 opinion letters and is consistent with the “plain meaning” analysis of the Ninth Circuit in Alvarez. Those portions of the 2002 opinion letter that address the phrase “changing clothes” and the 2007 opinion letter in its entirety, which are inconsistent with this interpretation, should no longer be relied upon.”

and

(2) “Consistent with the weight of authority, it is the Administrator’s interpretation that clothes changing covered by § 203(o) may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable. The Administrator issues this interpretation to assist employees and employers in all industries to better understand the scope of the § 203(o) exemption.”

To read the entire Administrator’s Interpretation, click here.

1 Comment

Filed under Department of Labor, Donning and Doffing