Why it matters: What is the impact of social media on the workplace? Exploring the issue, the Equal Employment Opportunity Commission (EEOC) recently held a public meeting to discuss “Social Media in the Workplace: Examining Implications for Equal Employment Opportunity.” Speakers discussed how social media affects a spectrum of employment issues, from hiring (should employers review an applicant’s Facebook page?) to harassment in the workplace (what if employees post derogatory comments about coworkers?) to litigation. Of serious concern to the EEOC is whether, and to what extent, employers should be able to obtain social media during discovery in employment-related litigation. “The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns,” EEOC chair Jacqueline A. Berrien said in a statement about the meeting. “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.” Interestingly, a recent case out of Florida provides a perfect example of the intersection of employment litigation and social media, when a plaintiff lost the bulk of his settlement proceeds after violating the terms of a confidentiality agreement by telling his daughter about the settlement. She posted the news to her Facebook account, resulting in an appellate court agreeing with the school that it was not required to pay the remaining balance of the deal.

Detailed Discussion

Five panelists appeared before the Commission to discuss social media in the workplace, offering perspectives from agency lawyers and attorneys on both sides of the bar in employment disputes.

Employers may use social media for a variety of reasons, like maintaining a corporate blog to keep employees apprised of company goings-on or regularly posting to a Facebook page as a form of marketing to potential customers. Employers may also utilize sites like LinkedIn or Facebook to review applicants or recruit candidates for a position.

Speakers acknowledged the potential for violating antidiscrimination laws based upon information found on social media and recognized that several states have outlawed the request for social media passwords and the need to use only publicly available information.

Social media can also impact day-to-day employment issues if employees post harassing or derogatory comments about coworkers. And employers may be liable for failing to address a hostile work environment if an employee can establish the company had knowledge of such postings or an employer-owned device or account was used to make the postings.

An EEOC attorney testified about an employee of a federal agency who based his claim of racial discrimination on negative postings made on Facebook by a coworker. Although his agency dismissed the claim, the EEOC remanded it, acknowledging “that a social media posting by a co-worker may contribute to the creation of an unlawful hostile work environment,” EEOC lawyer Carol Miaskoff told the Commission.

The most pressing issue for the agency: the ever-increasing use of social media as a source of discovery in employment discrimination litigation. EEOC attorney Rita Kittle expressed concern that such efforts could have a chilling effect on employees bringing suit or joining an agency action. “When people think that participating in our case will mean that all their private communications may be laid bare for search by their employer or former employer who discriminated against them, they’re far less willing to participate in our cases,” she testified.

Commissioner Constance S. Barker noted that “private” should be considered in context. “I have a total lack of sympathy for all the people who blast their private lives on Facebook and other social media,” she said at the hearing.

A case out of Florida reinforces her point.

Patrick Snay filed an age discrimination and retaliation suit against his former employer, Gulliver Schools. The parties reached a settlement agreement in which Snay dropped his lawsuit and the school agreed to pay a total of $150,000 ($10,000 for back pay, $60,000 to his attorneys, and a final check for $80,000).

Included in the agreement was a detailed confidentiality provision requiring Snay and his wife to keep the terms of the deal strictly confidential. A breach of the provision would result in disgorgement of the settlement proceeds. Despite the clause, Snay informed his daughter the case was resolved.

Her response? Post the following message on her Facebook page: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation in Europe this summer. SUCK IT.” Many of her 1,200 Facebook friends were current or former Gulliver students.

The school then refused to pay the $80,000 because Snay breached the confidentiality provision. Snay filed a motion to enforce the agreement, arguing that his revelation to his daughter and her Facebook post did not constitute a breach. A trial court agreed, but the Florida Court of Appeals reversed.

“[B]efore the ink was dry on the agreement, and notwithstanding the clear language of [the provision] mandating confidentiality, Snay violated the agreement by doing exactly what he had promised not to do,” the court wrote. “His daughter then did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age and retaliation case against the school.” The court therefore sided with the school and held Gulliver was precluded from enforcing the agreement based on Snay’s breach of a material term.

To read the written testimony given at the EEOC’s meeting, click here

To read the opinion in Gulliver Schools v. Snay, click here.