Published Date: 04/07/2014
By Pat Rountree
The Equal Employment Opportunity Commission (EEOC) held a meeting on March 12 to solicit information on social media in the workplace. According to EEOC Chair Jacqueline A. Berrien, “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 rapid advancement of technology and use of social media has created many questions and issues for employers that are yet to be addressed by laws and agency guidance. The issue is the massive impact of technology and social media for employers on laws that already existed and how to modify policies and practices
National Labor Relations Board (NLRB) rulings have given insight to their interpretations of Section 7 National Labor Relations Act (NLRA) rights for employees that have caused employers to review and perhaps rewrite several handbook policies. The purpose is to avoid the “chilling effect” of policies on the right of employees to discuss their wages, hours, and working conditions. While the NLRB has weighed in on numerous company policies, those affecting social media are the obvious social media policy, but also confidentiality policies, and rules against making disparaging remarks about the company or employees that we have addressed in prior articles.
Now the EEOC is tackling the social media issues to address how existing EEO laws fit into the framework of technology and social media use. They solicited comments on a range of issues, including recruitment and hiring, harassment, and records retention and discovery. Employers are already very familiar with the issues. Social media can expose employers to information regarding employees and applicants on Linked In, Facebook, and other sites that they would not have had access to before and that can create potential liability for discrimination. Employee postings on their own accounts on social media may find their way to HR through other employees who complain that the employee made harassing remarks about them or a group of employees.
A number of attorneys served on a panel and provided comments on the issues. CAI will keep you updated on EEOC developments on this issue.