The use of social media has become pervasive in today's workplace and, as a result, is having an impact on the enforcement of federal laws, a panel of experts told the U.S. Equal Employment Opportunity Commission (EEOC) at a meeting recently held at EEOC Headquarters in Washington. The meeting was convened to gather information about the growing use of social media and how it impacts the laws the EEOC enforces.
The meeting helps the EEOC understand the increasing use of social media in the 21st century workplace and the new opportunities presented. One participant in the meeting presented the benefits of social media to a highly dispersed work force. 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; marketing to clients, potential customers and crisis management; and for recruitment and hiring of new employees.
The use of sites such as LinkedIn and Facebook can provide a valuable tool 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.
A panelist who counsels corporations said that social media should be one of many tools used in recruitment, in order to cast a wide net for potential candidates. To the extent that employers conduct a social media background check, it is better to have either a third party or a designated person within the company who does not make hiring decisions do the check, and only use publicly available information, not requesting passwords for social media accounts. Several other panelists noted, there already exist four states with laws prohibiting employers from requesting passwords and user names from applicants/employees, a number of other states have such laws pending, and there are several proposals before Congress to do the same on a federal level.
One panelist 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. "The 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.
The other major area addressed by witnesses at the meeting was the increased use of social media as a source of discovery in employment discrimination litigation, even where housed on third-party sites. At least one EEOC attorney voiced her fear when she warned that the increased effort to access private social media communications may have a chilling effect on people seeking to exercise their rights under federal anti-discrimination laws.
The EEOC has had to address some of the issues surrounding the use of social media. In one reported 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."
The Commission will hold open the Social Media Commission meeting record for 15 days, and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meeting. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507, or emailed to: [email protected].
The public comments submitted will be made available to members of the Commission and to Commission staff working on the matters discussed at the meeting. In addition, comments may be publicly disclosed on the EEOC's public website, in response to Freedom of Information Act requests, or in the Commission's library. By providing public comments in response to this solicitation, commenters are consenting to their use and consideration by the Commission and to their public dissemination. Accordingly, commenters should not include any information in submitted comments that they would not want made public, e.g., home address, telephone number, etc. Also note that when comments are submitted by e-mail, the sender's e-mail address automatically appears on the message.