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In overtime suit, employer cannot discover employees’ social media posts or GPS data

By Lorene D. Park, J.D.

In an FLSA overtime suit, a federal district court in Indiana has denied Angie’s List’s motion to compel the production of GPS data from employees’ personal devices, as well as social media posts, texts, and emails concerning absences from work. In the court’s view, the information impinged on the employees’ privacy interests and the employer failed to show the information would be more probative—on the issue of whether they were working during certain hours—than other less intrusive data already in its control, such as computer logins or badge swipe data. (Crabtree v. Angie’s List, Inc., January 31, 2017, Dinsmore, M.).

The plaintiffs in this FLSA overtime suit worked for Angie’s List, finalizing sales with service providers for advertising on its website. They spent most of their workday on the telephone, but because the employer did not provide company-issued electronic devices for work purposes, the employees used their personal cell phones and other devices. They claimed they spent 10-12 hour per day but were paid based on an eight-hour day and 40-hour workweek.

GPS data sought. During discovery, the employer sought to obtain GPS and location services data from the employees’ personal cell phones to “construct a detailed and accurate timeline of when Plaintiffs were or were not working.” Objecting, the employees argued that the request posed significant privacy concerns and the GPS data would not accurately portray whether they were working at any given time. The employer filed a motion to compel this information and also raised concerns about certain other discovery responses.

According to the employer, the data was relevant to how many hours the employees actually worked—it noted that they could remain logged into their computers on the SalesForce software but be inactive for up to four hours. The GPS data would purportedly identify whether they had left for the day, left for lunch, or had taken some other break while still logged on.

Denying the motion, the court noted that employees were expected to work outside the office to accommodate clients in different time zones, so the fact that their phones left the Angie’s List building would have no meaningful impact on whether they were working at the time.

Privacy interests tip the scale. Furthermore, the case on which the employer relied did not involve the same privacy interests involved here. The court explained that, under Rule 26, it must limit discovery if it can be obtained from another source that is less burdensome and more convenient. Also, advisory committee notes suggest caution when evaluating requests to inspect a party’s electronic devices for ESI in order to avoid unduly impinging on privacy interests.

In addition, the employees already provided cell phone records so the employer could identify business-related calls, and the employer failed to demonstrate that the GPS data would be more probative. Based on the foregoing, the court concluded that a forensic examination of the employees’ electronic devices was not proportional to the needs of the case and any benefit from the data was outweighed by their significant privacy interests.

Social media posts off limits too. The employer also sought documents such as email messages, social media posts, work schedules, journals, diaries, calendars, text messages, blog or website posts, Twitter messages or other social media posts “prepared, created, obtained, or used by” the employees from September 2014 to September 2015 that related to absences from or attendance at work. The employees responded that they did not keep any diaries, journals, or calendars and that the request for emails, texts, and social media posts was nothing more than a “fishing expedition” not relevant to the claims and defenses in the case.

Quoting Judge Posner, the court noted: “of course pretrial discovery is a fishing expedition and one can’t know what one has caught until one fishes. But Fed. R. Civ. P. 45(c) allows the fish to object.” Here, the court shared the employees’ concerns that the employer cast too wide of a net and did not justify the breadth of its request.

In the court’s view, the employer did not show how emails, texts, or social media posts would be more probative than other less intrusive data already within its control, such as the SalesForce data, computer logins, or badge swipe data. Plus, its broad request would encompass clearly personal communications such as an email string about an upcoming vacation or lunch date. “These communications ‘relate to absences from work’ yet have absolutely no relevance to this lawsuit,” the court averred. As such, the motion was denied on this request as well.