On March 12, the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting that according to EEOC Chair Jacqueline A. Berrien “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.”

This post summarizes the written testimony, focusing on the most salient legal implications of social media in various aspects of the employer-employee relationship.

Recruitment

Many employers rely on social media to bolster recruitment. Jonathan Segal, representing the Society for Human Resource Management (SHRM), testified that “77% of companies … were using social networking sites to recruit candidates for specific jobs,” up from 34% in 2008.

Recruiting via social media may raise questions about whether the practice has a disparate impact on protected groups. Carol Miaskoff, Acting Associate Legal Counsel of the EEOC, described the case of Reese v. Department of the Interior (National Park Service), in which a 61-year-old woman “asserted that the agency’s recruitment of younger people … through … social media put older workers at a disadvantage, because they use computers less often than younger people, … [which] had a disparate impact on workers protected by the Age Discrimination in Employment Act.” Although the EEOC found the claimant had not provided sufficient evidence for a prima facie case of disparate impact, Renee Jackson of Nixon Peabody LLP recommended that employers “[u]se social media as part of a larger recruitment plan” and “[a]void using overly specific targeted advertising.”

Screening Candidates

Social media also plays a role, though less frequently, in screening job applicants. Social media can provide valuable information about candidates’ suitability for a position. Segal recalled a situation in which a candidate was denied a supervisory position because of “racist rants on his public Facebook page.” However, social media screening may also reveal information about candidates’ membership in protected classes such as their race, gender, national origin, color, religion, age, disability, or genetic information. Improper use of such information in making a hiring decision would violate discrimination laws.

Many companies mitigate this risk by having human resource personnel who are knowledgeable of the applicable legal rules conduct the social media screenings, rather than the person making the hiring decision. Third-party companies can also perform social media background checks, said Lynne Bernabei of Bernabei & Wachtel PLLC. Such third-party checks omit information about a candidate’s protected status, but unlike in-house screening, are covered by the Fair Credit Reporting Act, which requires candidate notification and consent, as well as the opportunity for candidates to dispute the contents of the report.

Hostile Work Environment

Social media is increasingly involved in allegations of harassment and hostile work environments. Miaskoff described the case of Knowlton v. Department of Transportation (Federal Aviation Administration), in which the EEOC ruled that a worker could proceed with a claim of racially discriminatory harassment / hostile work environment against the agency based in part from a co-worker’s post on Facebook.

Bernabei observed that employer liability for employees’ social media activities may create a unique dilemma for public employers, who “must be particularly careful not to overstep First and Fourth Amendment constitutional boundaries in monitoring or limiting employees’ social media activities; this may result in public employers being more vulnerable to accusations that they were aware of harassment or other online conduct but failed to stop it.”

Employee Fraud

Some of the testimony also discussed the potential for social media to reveal employee abuse of protections gained under antidiscrimination laws. Jackson described cases in which “co-workers … complain to the employer about an employee on leave who is posting pictures or status updates indicating perhaps that the leave is not medically necessary” under the Family and Medical Leave Act (citing, e.g. Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. 2012)).

Discovery

Social media also creates distinctive challenges as a source of discovery in employment discrimination litigation. Among other issues, Bernabei discussed how discovery can extend to an employee’s personal electronic device when the employer faces an employment discrimination suit, and described creative efforts by judges to protect the privacy of employees while determining the relevance of potentially discoverable social media material, for instance, “going so far as to create their own personal social media account to ‘friend’ and view a party’s social media activity if the party consents.” Rita Kittle, a Senior Trial Attorney in EEOC’s Denver Field Office, “warned … that the increased effort to access private social media communications may have a chilling effect on persons seeking to exercise their rights under federal anti-discrimination laws.”

Other Workplace Laws

Although the hearing focused on discrimination laws enforced by the EEOC, witnesses also mentioned potential issues pertaining to other workplace laws. Of particular note, Jackson testified that the “National Labor Relations Board has recently focused its social media enforcement efforts on two areas … : 1) the content of employer social media policies, and 2) employer discipline of employees for their social media activities,” which may chill or directly infringe on employees’ exercise of Section 7 rights to engage in “concerted activities for … mutual aid or protection.” Jackson further noted difficult questions arising under the Fair Labor Standards Act when “non-exempt employees [spend time] using technology and social media outside of working hours on the employer’s behalf or at the employer’s request.”