The law surrounding social media in the workplace still lags a long way behind the ubiquitous use of social media. While the U.S. National Labor Relations Board, and a few state legislatures and courts have been fairly active, the U.S. Equal Employment Opportunity Commission (“EEOC”) is only now, finally, openly examining the many legal issues regarding social media use by employees and employers.
On March 12, 2014, the EEOC held a public meeting titled “Social Media in the Workplace: Examining Implications for Equal Employment Opportunity Law.” Here, the EEOC heard testimony that focused on social media’s impact upon equal employment opportunity laws enforced by the EEOC, and regarding various issues including using social media for recruiting and hiring employees, workplace harassment, employee advocacy, and discovery during litigation.
As Jacqueline Berrien, EEOC Chair, put it, “[t]he increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns. This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace.”
The EEOC, however, did not provide any conclusions, guidance, or advice on social media in the workplace. Indeed, the purpose of the meeting was to gather information, not to provide guidance. Ultimately, however, the public meeting focused on many of the topics I’ve written about during the past two years while contributing to Maximize Social Business. Loyal readers will be happy to know that you have already been exposed to many of the “new opportunities as well as questions and concerns” that was presented to the EEOC.
What the EEOC Learned:
A number of panelists addressed employers’ use of social media in recruitment and hiring. The use of sites such as LinkedIn and Facebook can serve as valuable tools for identifying good candidates by searching for specific qualifications, panelists told the Commission.
But, the improper use of information obtained from such sites may be discriminatory since most individuals’ race, gender, general age and possibly ethnicity can be discerned from information on these sites. Renee Jackson, an attorney who advises employers, noted that if an employer conducts social media background checks, they should have a third party or a designated person within the company who does not make hiring decisions do the check, and she stated that employers should avoid requesting social media passwords.
In addition to using social media to recruit and hire employees, Jonathan Segal, speaking on behalf of the Society for Human Resource Management (SHRM), explained to the EEOC that employers use different types of social media for several different reasons: employee engagement and knowledge-sharing, such as having a corporate Facebook page or blog to keep employees in far-flung offices aware of new programs or policies; and marketing to clients, potential customers and crisis management.
Furthermore, Lynne Bernabei, an attorney who litigates on the plaintiffs’ side, explained how use of personal social media accounts could figure into situations of workplace harassment. Even if employees post harassing or derogatory information about coworkers away from the workplace, for example, an employer may be liable for a hostile work environment if it was aware of the postings, or if the harassing employee was using employer-owned devices or accounts.
Bernabei further explained that “[t]he issue is further complicated as more employers use a ‘Bring Your Own Device’ policy, in which they require or expect employees to use personal laptops, smartphones, or other technology while on the job.”
What the EEOC Noted:
The EEOC’s Acting Associate Legal Counsel Carol Miaskoff testified that the EEOC has addressed some of the issues surrounding the use of social media. In one decision arising from the federal sector, EEOC’s Office of Federal Operations found that a claim of racial harassment due to a co-worker’s Facebook postings could go forward.
Additionally, in response to a letter from Senators Charles Schumer and Richard Blumenthal, the EEOC reiterated its long-standing position that personal information-such as that gleaned from social media postings-may not be used to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability or genetic information. Quoting from a 2010 informal discussion letter from the EEOC, Miaskoff noted that “the EEO laws do not expressly permit or prohibit use of specified technologies. . . . The key question . . . is how the selection tools are used.”
What’s Next for the EEOC and Its Enforcement Efforts:
The main takeaway from this public meeting is that the EEOC is moving forward with attempting to understand the issues social media presents in the workplace. It is important to understand that social media does not change the anti-discrimination laws and issues the EEOC has always focused on. Social media, however, does change how employers and employees interact with each other, with co-workers and third parties.
Simply put, social media has changed behavior and workplace interaction. These new behaviors and ways of interacting with others require that employers adapt, and train managers and employees to behave in ways that comply with equal employment opportunity laws.
Similarly, employees must internalize the notion that “nothing you post is private.” These conversations and comments do not fade away like comments over-heard around the water-cooler before we had social media as we know it. Social media is not going anywhere and in the upcoming years the EEOC will do its best to enforce the old laws under new evolving circumstances.
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.