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.

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!