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EEOC Lawyer Advises Careful Navigation of Issues in the Workplace

Tuesday, September 4, 2012

Social media outlets such as Facebook and Twitter can provide recruiters, employers, and human resources professionals with a lot of useful tools and information but also present a significant risk, Edward Loughlin, a trial attorney with the Equal Employment Opportunity Commission's Washington, D.C., field office, told attorneys attending a workshop Aug. 24.

“[I]f you don't watch yourself, you can really create a giant problem down the road,” Loughlin said at the workshop sponsored by the EEOC Training Institute and the Washington field office. Loughlin said the use of social media in the employment context has “been on the radar screen of the commission for several years now.”

'Legal Mine Field'

Although it might not be obvious, he said, navigating issues that arise from social media use in the workplace involves EEOC-related topics and “can create an absolute legal mine field for employers.”

Information about employees that would have been unavailable to employers 10 years ago is now potentially accessible via social media, he said. Loughlin added that he would be glad to hear that an employer had refrained from acting on any such information. But merely accessing the information could create “an issue for [a company] down the road when someone files a charge,” he warned.

For example, the attorney said, supposing a job candidate posts information about an early pregnancy on her Facebook page, and a potential employer sees it. If the woman is not hired and brings charges claiming it was because of the pregnancy, the company will have a harder time arguing that the information was not a factor, he said.

Disparate impact also could become an issue in cases where employers only recruit through social media, he noted. For example, users of Facebook are disproportionately under the age of 40, he said, so someone may bring a claim arguing he or she was not considered for a job because of the lack of a Facebook account. “I'm not saying I've seen it yet,” he said. “I'm not trying to alarm people, but this could be a problem.”

Loughlin also reminded participants that although a particular issue may be outside of EEOC's purview, other federal laws may come into play. For example, the National Labor Relations Board “is a giant player when it comes to social media in the workplace,” he said. NLRB recently issued three separate reports regarding social media, he noted (63 BTM 38, 1/31/12; 63 BTM 182, 6/5/12).

Loughlin warned participants to be careful when thinking of instituting policies that would prevent employees from interacting with one another on social media outlets such as Facebook. Although “EEOC doesn't have anything to say about that,” such a policy could run afoul of the National Labor Relations Act, he said.

Loughlin also reminded participants to consider state laws, which might provide coverage for categories of individuals who are not covered by federal law.

'Same Types of Issues'

Loughlin also addressed employee harassment via social media. He emphasized that although the activity in question may take place over the internet, employers are “dealing with the same types of issues” that occur with in-person encounters. So the same questions need to be asked to determine employer liability, he said.

Loughlin cited Blakey v. Continental Airlines Inc., 164 N.J. 38, in which the New Jersey Supreme Court held that an employer may be responsible for harassment on an electronic message board in certain circumstances (51 BTM 187, 6/15/00).

“We would all probably agree that if an employer allowed this to happen on a [cork] message board in the break room that wouldn't be OK,” he said. “Same thing happens with a virtual water cooler.”

“For whatever reason, we're seeing employers getting very confused” in cases where the harassment or other activity happened electronically, Loughlin said. “Go back to your fundamentals on these issues.”

Social Media Policies

Loughlin listed some components for employers to include in a social media policy.

“Define the scope and the coverage” of the policy, he said. Additionally, make sure the policy is not “static” because new social media outlets will emerge, he said.

“Again, this is about mitigating risk,” Loughlin said. Employers should figure out how to handle issues before they happen so they are “ready to go” when the time comes.

Some components of the policy should be driven by the nature of the business, he said, noting that some employers may actually encourage the use of social media as part of the job description.

But it might make sense for more “traditional” companies to tell employees to “Facebook on your own time” and refrain from doing so on a work computer, he said. “Again, this needs to be driven by your business. This is not a one-size-fits-all type of thing,” Loughlin said.

Additionally, Loughlin said, advise employees “that if they are using these sites, they're doing it at their own risk, and are going to be personally responsible for the content.”

“Remind employees that if they're the victim of inappropriate conduct, even if it's through social media, to promptly report it to the company,” he added. Avenues of communication should remain open, and employees should be assured they can talk to human resources staff if necessary, he said.

By C. Reilly Larson  

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