On Wednesday, March 12, 2014, the EEOC held an open meeting entitled "Social Media in the Workplace: Examining Implications for Equal Employment Opportunity Law." Panelists included EEOC officials and attorneys from three private law firms. EEOC Chair Jacqueline A. Berrien and Commissioners Barker, Feldblum, Lipnic, and Yang attended, offering comments and asking questions of the panelists. The commissioners emphasized that the meeting was a "listening session" and the EEOC does not have plans to issue guidance on social media issues.
Fitting for the topic and a first for an EEOC meeting, the meeting was live tweeted via the hashtag #socialEEOC. By the close of the meeting, over 90 comments with the #socialEEOC hashtag had been tweeted, including several from the Commission itself.
Topics of discussion included social media's impact on recruitment and hiring, harassment, records retention and discovery in litigation.
Highlights of the meeting included the following points:
- Discovery of social media has become more commonplace in employment litigation. EEOC officials expressed concern that broad social media discovery requests may deter individuals from asserting their rights and participating in systemic litigation. Several panelists, however, noted that most courts are not allowing "fishing expeditions" and are narrowing the scope of discovery from social media sites (as with other sources of evidence, such as emails). Others noted that certain privacy rights are waived when an individual brings a lawsuit.
- Using social media as an employment screening tool in and of itself does not violate federal employment laws. However, several panelists recommended that employers should proceed cautiously when doing so and should take steps to ensure that the screening is done in a non-discriminatory manner.
- Commissioner Barker cautioned that the EEOC must be mindful of its limited authority to enforce federal EEO laws only, and needs to proceed carefully when dealing with "sexy," timely topics such as social media. She also stated, however, that she has little sympathy for those who over-share on social media or who fail to secure privacy settings.
- The law is struggling to keep up with technological developments. For example, social media tools such as Confide and Snapshot allow a user to send messages that self-destruct after a short amount of time, posing record-retention challenges. That said, covered employers remain subject to federal EEO laws regardless of the media or technology used.
- Although the EEOC has an interest in ensuring individuals have access to the justice system, there is a need to balance employee rights with employers' legitimate concerns regarding social media posts by employees.
As the use of social media continues to proliferate, it is increasingly important for employers to consider social media's impact on the workplace and to remain cautious of legal issues that might arise. Drafting workplace policies that address social media can help ensure clarity for both employers and employees in understanding their roles and responsibilities. In addition, training of managers and employees helps ensure compliance with legal obligations—regardless of technology.