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.”
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
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,
“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.”
Loughlin listed some components for employers to include in a social media
“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