There seems to be room in the sandbox for lots of people to play.  

Recent recesses have seen the NLRB dominate the discourse over the do’s and don’ts when it comes to social media and employment law.   But another federal body wants to come and play too.

The EEOC, responsible for enforcing all Title VII obligations, recently held an open meeting to discuss how the use of social media by employers, employees, and applicants may implicate equal employment opportunity laws.   According to an EEOC press release, Chair Jacqueline Berrien noted that "[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."

Among the highlights gleaned from the open meeting: 

  • 77% of companies reported in a 2013 survey that they used social networking sites to recruit candidates.  While there may be salutary purposes in doing so, inappropriate uses of the information obtained could lead to discriminatory intent and impact against protected classes.
  • Laws prohibiting employers from demanding social media account passwords continue to be a hot issue.
  • Harassment and discrimination through social media – even away from the work site – is still problematic for employers.
  • Potential liability exists for companies when their employees engage in inappropriate social media activity using employer-owned devices and accounts.
  • There continue to be emerging rules on the discoverability of private social media communications in employment lawsuits.

Employer Take Away:   What should you as an employer take away from this development?   

There will be public comments submitted to the EEOC in response to its open forum, and more than likely some guidance will eventually be issued by the EEOC to help employers navigate many of these issues.   Until then, your company would be wise to continue to stay ahead of the curve in how it implements its employment policies and practices, and not end up in the corner crying because the federal government threw sand in its eyes.