Zeman v. Twitter, Inc.

Background

John Zeman, a former Twitter employee, sued Twitter, Inc. and others on behalf of himself and other Twitter employees age 50 or older who were laid off after Elon Musk acquired Twitter. He asserted age-discrimination claims under the federal Age Discrimination in Employment Act and the New York State Human Rights Law. The opinion states that Twitter merged with X Corp. in or about March 2023 and that X Corp. has successor liability for Twitter’s alleged unlawful acts.

Zeman initially sought notice to all Twitter employees across the United States age 50 or older who lost their jobs after Musk acquired the company. In reply, he agreed to limit the proposed group to employees age 50 or older who were laid off or terminated as part of the November 4, 2022 reduction in force. He also confirmed that employees terminated for cause or performance would not be included.

Conditional certification

The court applied the first step of the two-step process used to decide whether employees are similarly situated for purposes of an employment collective action. At this stage, the court decides whether potential claimants should receive notice. The standard is lenient, and the court does not weigh the evidence or decide the merits. After discovery, defendants may seek decertification, which would ask the court to determine whether the members are actually similarly situated.

The court concluded that Zeman showed more than speculation that Twitter may have discriminated against older employees in the November 4, 2022 reduction in force. It treated that reduction in force as a single decision affecting the proposed group and found that Zeman was generally comparable to the employees he sought to represent. The court also found that the possibility that collective members held different jobs or worked in different departments did not prevent conditional certification at this stage.

The court rejected defendants’ request to limit the group to Twitter’s Communications Department, even though that department was eliminated and Zeman was its only employee over age 50. The court also declined to exclude employees who may have signed arbitration agreements or severance agreements containing releases. It held that those issues could potentially prevent particular individuals from joining later but did not prevent conditional certification and notice at this stage.

Certified collective and notice

The court certified this collective for notice purposes: all Twitter employees across the United States age 50 or older who were involuntarily terminated as a result of the November 4, 2022 layoffs that occurred after Musk acquired the company.

The parties were ordered to meet and confer and submit a revised notice and a protective order within 21 days. Zeman’s counsel will distribute the notice. The court allowed text-message notice and reminder notices, required the parties to protect potential members’ information, and directed Zeman to submit draft text for those communications. The notice must explain that participants may have to answer written questions, attend depositions, produce documents, or testify; that X denies the allegations and liability; that participants will be bound by favorable or unfavorable rulings and settlements; and that arbitration agreements or releases in severance agreements may affect their ability to participate. The court allowed a 90-day opt-in period after the finalized notice is sent.

Sealing motions and disposition

The court granted in part Zeman’s administrative motion concerning sealing, allowing narrow redactions of financial information in Exhibit C, and ordered the parties to file the required redacted materials. The court denied Zeman’s other administrative sealing motion concerning Exhibit A, an excerpt from Elon Musk’s deposition in a related arbitration.

Susan Illston therefore granted in part Zeman’s motion for conditional certification. The order authorized notice but expressly did not decide the merits of the age-discrimination claims.