Q&A: Year-End Thoughts on EEOC Enforcement, Social Media Trends

Daniel A. Schwartz, an attorney at Shipman & Goodwin in Hartford, Conn., recaps his 2013 noteworthy moments in Equal Employment Opportunity Commission enforcement, and discusses how new and not-so-new mobile apps and social media sites are redefining the employment law landscape.

Bloomberg BNA: You're a frequent commenter on social media in the context of employment law. Was there anything in 2013 that stood out to you as noteworthy?

Schwartz: It's pretty remarkable to see how quickly we've adapted to social media's influence on our day-to-day lives. In many ways, 2013 felt like the first year where cases involving social media felt more mainstream. 

It no longer seems foreign to use an admission made by an employee on Facebook. It seems more natural in a case involving an alleged injury by an employee that you would look to see if the person posted any Instagram photos to contradict the claim.  And yet, despite the progress we've made, there are still lots of areas where the answers are still fuzzy.

Yes, a federal appeals court in Bland v. Roberts suggested in September that a Facebook "like" can be protected speech under the First Amendment, but the 11th Circuit case Gresham v. City of Atlanta in October 2013 suggested that social media speech on Facebook may not necessarily be protected given the use of privacy settings.  Courts are still struggling with notions of privacy, publicity and intent on these sites. 

Bloomberg BNA: What practical advice would you offer to an employer about maintaining or updating its social medial policy?  And what are some signs that an employer may need to update its social media policy? 

Schwartz: Obviously, if an employer doesn't have a social media policy, now's the time to implement one. It's become as needed as your anti-harassment policies.  But unlike an anti-harassment policy, the particulars have to be pegged to your company, your culture and your business needs.  

With the National Labor Relations Board still focusing on social media policies for unionized and nonunionized workforces, it's important for employers to get proper legal advice too.

I think employers ought to be careful not to make their policy too specific to a particular social media site.  If you still reference MySpace in your policy, it's probably due for a refresh. 

Employers should think about addressing not only employee use of social media, but also how the employer is going to monitor social media as well.  Leaving these things to chance is not a good way for a company to run its business. 

Bloomberg BNA: How do you see the discussion on social media developing in 2014? Do you see any new issues emerging or gaining prominence in 2014?

Schwartz: I think the notion of some of these disappearing or "private" social media sites, like Snapchat or Whisper, is really compelling in 2014.  Combine this with messaging apps that blur the line between a text message and a social networking message and you've got unexplored territory.  

Apps like WhatsApp and Kik are being adopted by college-aged kids at high rates and those individuals are using [this technology] in the workplace.  What regulations are they under?

If those apps are being used to harass others, then how does an employer prevent it in the first place? And how does the employer get forensic evidence of such actions if the whole point of sites like Snapchat is to "erase" the messages too?  While there may be ways to recover those messages, it's certainly not easy or cheap to do so.

Bloomberg BNA: As you've assessed 2013, what has stood out to you as significant in EEOC's regulatory agenda and federal litigation?

Schwartz: I think what we're starting to see in clearer focus this year is the agenda the EEOC wants to advance and what it will do to attain its goals.

The EEOC, to some major fanfare, had tried to expand the reach of disparate impact claims by saying that neutral policies like the use of a criminal background check discriminated against a particular racial group. 

This 2012 guidance set out what the battle lines were. But in 2013, we're now seeing the EEOC going even further by filing class actions against BMW and  Dollar General Stores--two high-profile employers who had policies that did not distinguish between felonies and misdemeanors in criminal convictions. 

Is the EEOC going to go after every employer? No, but in filing against some larger employers, it is plainly sending a message to others that this issue remains important to the EEOC and should be important to others. We're just starting to see court cases now addressing these issues. 

Bloomberg BNA: Is there any pending litigation involving the EEOC that you're paying close attention to?

Schwartz: Obviously as I've noted, the court cases addressing EEOC's guidance on use of criminal checks are something my department is watching. However, we're starting to see the beginnings of the court decisions pushing back on that agenda. 

In August 2013, for example, a federal court in Maryland rejected the EEOC's claims in one case noting that the case was "a theory in search of facts to support it."  Indeed, the court was highly critical of the agency noting that the EEOC was placing employers in [a] Hobson's choice.

Nevertheless, the EEOC has shown no real signs of pulling back on its strategic initiatives. Indeed, its plan for the next few years indicates a continued focus on "recruitment and hiring practices that discriminate" including the use of screening tools, like pre-employment tests and background checks.

Equal pay laws are also high on the EEOC's agenda for the next few years so we're keeping an eye on those claims as well. 

Bloomberg BNA: Any final thoughts regarding social media or EEOC enforcement?

Schwartz: Speaking of apps, the Department of Labor has periodically sponsored contests for the creation of mobile apps that employees can use. For example, in wage and hour cases, they provide a way for employees to track their time so they can potentially bring a wage/hour action. 

It's just a matter of time before that same creativity is brought to bear on EEO claims.  Smartphone adoption and the implications on social media remains an underreported story, I think.

Already, smartphones allow employees to record information in their workplace through pictures and videos.

Employers would be wise to regulate such usage in the workplace, in part, to make sure that confidential information stays confidential. We try to stay on the cutting edge of technology issues, so employers should also be sure to stay current on the trends too. You miss a few months, you're missing what's going on.

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If you're interested in participating in a Q&A on enforcement actions, legal developments or news related to the Equal Employment Opportunity Commission or the Office of Federal Contract Compliance Programs, or you have a suggestion for a Q&A topic, send an e-mail to lbridgeford@bna.com.You can also follow me on Twitter @LCBridgeford.