When it comes to sending and receiving information, cell phones are both our present and, in all likelihood, our future. In 2004, only 65% of adult Americans owned a cell phone.1 Since then, this number has skyrocketed to over 90%.2 Cell phone ownership remains high even for those adults making less than $30,000 per year, with 84% of such adults reporting to own a cell phone.3 And, when a text message is sent, it’s read: 97% of all text messages are opened, with 83% being opened within one hour.4
Given these statistics, it is clear that text messages can play a vital role in the effective communication of court-approved legal notices. This article will discuss the growing use of text messages in the context of FLSA collective actions and the numerous decisions recently approving the sending of such notice.
Background On The FLSA’s Collective Action Mechanism
Under the FLSA, plaintiffs can bring unpaid minimum wage and overtime actions on behalf of both themselves and a collective of similarly-situated employees who affirmatively “opt-in” to the action.5 In short, at an early stage of the litigation, the court must make an initial determination whether the named plaintiffs are similarly situated to other employees with respect to whether an FLSA violation occurred.6 Once the court finds that there are other similarly-situated employees, it must then determine how to inform these employees of their ability to join the lawsuit.
Courts have approved a variety of methods for sending the opt-in notice to putative collective members. The most commonly approved methods are (1) sending the collective action notice by postal mail and (2) posting a form of the notice in a common area in the defendant’s workplace.7 Yet, evidencing a willingness to adapt to modern technology, many courts now authorize the distribution of notice by email, with some courts finding that notice via email is the new norm.8 Text message notifications will likely be the next frontier. And, as will be discussed below, courts are already beginning to approve requests to send notices through this increasingly popular form of communication.
Recent Court Decisions Endorse Sending Collective Action Notice Via Text Message
As of May 2016, six of the seven courts to publish a decision on the sending of text message notice to putative collective members have approved the sending of such notice in at least some form.9 However, despite the fact that this form of notification has been accepted by numerous courts, text message notice is not yet the norm.
Evidencing the courts’ reluctance to approve this new form of notice is the fact that some courts have only authorized it after finding that the case’s special circumstances warranted the sending of text message notifications. So far, courts have found such special circumstances due to: (1) the difficulties with reaching putative collective members by more traditional means because of the high turnover rate among such employees10; and (2) the plaintiffs’ unrebutted allegations that the "one constant contact that these putative members have is their cell phone number."11
However, in two of the published decisions, the courts approved text message notification without delving into whether it was warranted by any special circumstances.12 One such decision, issued in Irvine v. Destination Wild Dunes Mgmt., is particularly memorable as it is, by far, the most progressive decision on the issue of sending text message notice of a pending collective action.13 In Irvine, the court approved the sending of notice via direct mail, email, and text message, calling such forms of notice “eminently reasonable.”14 In elaborating on its decision to authorize notice via email and text message, the court explained that:
This has become a much more mobile society with one’s email address and cell phone number serving as the most consistent and reliable method of communication. Political candidates now routinely seek out their supporters’ cell phone numbers and email addresses because traditional methods of communication via regular mail and land line telephone numbers quickly become obsolete.15
In light of the staggering, and still increasing, percentage of Americans who own a cell phone and the rates in which such text messages are read by the recipient, it is easy to foresee other courts joining Irvine and emphatically supporting the sending of collective action notice via text message.`16
How This Works: Sending Effective Notification In 160 Characters Or Less
Once a court authorizes text message notice, the question then becomes what should be included in this text message? So far, courts have generally approved two different forms of text message notice.
The first form consists of a text message with a short explanation for why it is being sent and a link to a website containing the full form of the collective action notice. The following is an example of a court-approved text message in this form:
If you have worked as a restaurant worker at Obao anytime in the last three years, you might be entitled to join a law suit [sic] claiming back pay for minimum wage and overtime compensation. For additional information about the case, including how to join, visit <insert URL>.17
The second form of text message notice is one which contains a more detailed description of the collective action in lieu of a link to the full notice itself.18 In addition, this notice also prompts recipients to check their mail or email for the collective action notice and directs the recipients to text or call the plaintiffs’ attorney (whose number is listed in the text message) with any questions.19
Each of these forms have benefits and drawbacks. The first form is succinct, easy to read, and it should be able to effectively convey the message (namely, read the collective action notice contained in the link) in under 160 characters, the generally recognized limit for a single text message. However, while cell phone ownership among adult Americans is around 92%, only 68% own a smartphone capable of opening up such a link.20 Thus, this form of notice may prove largely ineffective to the 24% of adult Americans who own cell phones that likely cannot access the internet. It should be noted that this drawback may be of less importance depending on the demographics of the putative collective. For example, smartphone ownership is more prevalent among those younger adults, with 86% of adults between the ages of 18-29 and 83% of adults between the ages of 30-49 owning a smartphone.21 Similarly, smartphone ownership tracks a person’s income, with 87% of adults living in households earning $75,000 and up per year reporting to own a smartphone.22 Thus, this potential drawback may be diminished if the putative collective consists mostly of younger or wealthier individuals.
The benefit of the second form of text message notice, which does not rely on a link to the collective notice itself, is that its effectiveness does not depend on whether the recipient owns a smartphone or a cell phone. However, this form of notice is not without its drawbacks. For example, the long-form text message notice approved in Irvine comes in at around 886 characters.23 Given the 160-character limit generally applied to text messages, this means that the plaintiffs in Irvine were effectively sending six separate test messages to each opt-in. Not only would this make the text message more difficult to read, it would make the message more expensive for the recipient.24
There will and should be debate in the years to come over the proper form for a text message notice. What is becoming increasingly unquestionable, however, is that text message notifications are gaining traction with the courts. Moreover, the caselaw on text message notices is rapidly evolving. In fact, all of the seven published decision on this issue have been issued within the last year, meaning that more such decisions will likely be coming. Those lawyers who stay on top of recent developments on this issue and who begin modernizing their FLSA-notice practices now will have an advantage over the rest of the field. While court-approved text message notifications may not be the norm right now, they are the future. And the future is coming very, very soon.
[1] Technology Device Ownership: 2015, Pew Research Center, http://www.pewinternet.org/2015/10/29/technology-device-ownership-2015/ (last visited May 7, 2016).
[2] Mobile Technology Fact Sheet, Pew Research Center, http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/ (last visited May 7, 2016).
[3] Cell Phone and Smartphone Ownership Demographics, Pew Research Center, http://www.pewinternet.org/data-trend/mobile/cell-phone-and-smartphone-ownership-demographics/ (last visited May 7, 2016).
[4] Mark Cohen, Text-Message Marketing, N.Y. Times (Sept. 23, 2009), http://www.nytimes.com/2009/09/24/business/smallbusiness/24texting.html?pagewanted=all&_r=0 (last visited May 7, 2016).
[5] See 29 U.S.C. § 216(b); Raniere v. Citigroup, Inc., 827 F. Supp. 2d 294, 313 (S.D.N.Y. 2011) (rev’d on other grounds by Raniere v. Citigroup, Inc., 533 Fed. Appx. 11 (2d Cir. 2013)).
[6] Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010).
[7] See, e.g., Bhumithanarn v. 22 Noodle Mkt. Corp., 2015 U.S. Dist. LEXIS 90616, at *10-11 (S.D.N.Y. July 13, 2015) (approving notice via postal mail and noting that “’[c]ourts routinely approve the posting of notice on employee bulletin boards and in common employee spaces’”) (quoting Mendoza v. Ashiva Sushi 5, Inc., 2013 U.S. Dist. LEXIS 132777, at *29 (S.D.N.Y. Sept. 16, 2013)).
[8] See, e.g., Martin v Sprint/United Mgmt. Co., 2016 U.S. Dist. LEXIS 352, at *57 (S.D.N.Y. Jan. 4, 2016) (“Courts in this Circuit routinely approve email distribution of notice and consent forms in FLSA cases.”); In re Deloitte & Touche, LLP, 2012 U.S. Dist. LEXIS 2641, at *6 (S.D.N.Y. Jan. 17, 2012) (allowing distribution of notice via email, noting that “[i]n the present age . . . communication through email is the norm”); Pippins v KPMG LLP, 2012 U.S. Dist. LEXIS 949, at *41 (S.D.N.Y. Jan. 3, 2012) (“[G]iven the reality of communications today, . . . the provision of email addresses and email notice in addition to notice by first class mail is entirely appropriate.”). But see Cortes v New Creators, Inc., 2015 U.S. Dist. LEXIS 153730, at *12 (S.D.N.Y. Nov. 12, 2015) (refusing to allow distribution of notice to current employees by email because “in-store posting supplies sufficient notice”).
[9] The six published decisions approving in some fashion notice via text message are as follows: Vasto v. Credico United States Llc, 2016 U.S. Dist. LEXIS 60158, at *50 (S.D.N.Y. May 5, 2016); Martin, 2016 U.S. Dist. LEXIS 352, at *58-59; Lynch v. Stadium Grp. LLC, 2015 U.S. Dist. LEXIS 138290, at *15 (D.S.C. Oct. 8, 2015); Eley v. Stadium Grp., 2015 U.S. Dist. LEXIS 126184, at *9 (D.D.C. Sept. 22, 2015); Irvine v. Destination Wild Dunes Mgmt., 2015 U.S. Dist. LEXIS 126929, at *9 (D.S.C. Sept 13, 2015); Bhumithanarn, 2015 U.S. Dist. LEXIS 90616, at *10-11. For the one published decision addressing this issue that did not approve notice via text message, see McCoy v. RP, Inc., 2015 U.S. Dist. LEXIS 142521, at *14-15 (D.S.C. Oct. 19, 2015).
[10] Vasto, 2016 U.S. Dist. LEXIS 60158, at *50 (approving the sending of text message notice due to the fact that “the nature of the [defendants’] business facilitated a high turnover rate”); Martin, 2016 U.S. Dist. LEXIS 352, at *58-59 (approving text message notice given the high turnover rate among a subset of the defendants’ employees performing consumer outreach services); Bhumithanarn, 2015 U.S. Dist. LEXIS 90616, at *10-11 (approving text message notice to a collective consisting of the defendants’ restaurants’ wait-staff and cooking staff in light of “the high turnover rate characteristic of the restaurant industry”).
[11] Lynch, 2015 U.S. Dist. LEXIS 138290, at *15 (finding that the plaintiffs were only allowed to send text message notice “if a class member’s U.S. Mail notice is returned as undeliverable”).
[12] See Eley, 2015 U.S. Dist. LEXIS 126184, at *9; Irvine, 2015 U.S. Dist. LEXIS 126929, at *9.
[13] 2015 U.S. Dist. LEXIS 126929.
[14] Id., at *9.
[15] Id.
[16] No court has yet addressed whether the Telephone Consumer Protection Act (“TCPA”) would prohibit the sending of court-approved text message notifications concerning a pending collective action. In relevant part, the TCPA serves to prohibit phone calls, including text messages, when the call is made: (1) using an artificial or prerecorded voice or using an “automatic telephone dialing system,” which is defined as a system which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and the capacity to dial such numbers; and (2) to send an “unsolicited advertisement,” which is defined as any material “advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior [consent].” See 47 U.S.C. § 227(a)(1), (5), (b)(1). It is highly unlikely that a court would find that a judicially-approved text message notice of a person’s right to join a pending collective action would be considered an “unsolicited advertisement” as defined by the TCPA. See 47 U.S.C. § 227(a)(5). Thus, as long as plaintiffs refrain from using “automatic telephone dialing systems,” the TCPA would likely not serve as a barrier to sending such text-message notifications. See 47 U.S.C. § 227(b)(1).
[17] Bhumithanarn v. 22 Noodle Mkt. Corp., 14-cv-3624 (RJS), Dkt. No. 37 (S.D.N.Y. July 29. 2015); see also Martin v. Sprint/United Mgmt. Co., 15-cv-5237 (PAE), Dkt. Nos. 91-92 (S.D.N.Y. Jan. 15 & 18 2016).
[18] See Irvine v. Destination Wild Dunes Mgmt., Inc., 15-cv-980 (RMG), Dkt. No. 44-9 (D.S.C. July 23, 2015) (containing the plaintiffs’ proposed text message notice); Irvine, 2015 U.S. Dist. LEXIS 126929, at *7 n.1 (approving the plaintiffs’ proposed notice).
[19] Id.
[20] Technology Device Ownership: 2015, Pew Research Center, http://www.pewinternet.org/2015/10/29/technology-device-ownership-2015/ (last visited May 7, 2016).
[21] Id.
[22] Id.
[23] Irvine v. Destination Wild Dunes Mgmt., Inc., 15-cv-980 (RMG), Dkt. No. 44-9 (D.S.C. July 23, 2015).
[24] For example, under Verizon’s “Pay Per Message” cell phone plan, the recipient of such a text message notice would be charged $1.20 by Verizon, or twenty cents per message. See Text and Picture Messaging, Verizon Wireless, https://scache.vzw.com/whybuy/txt_pix_flix_messaging-bundle_and_save.html (last visited May 7, 2016).
