On March 12, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) convened a meeting to gather information about the growing use of social media and how it impacts the laws that the agency enforces. Of particular interest to this panel which consisted of top EEOC lawyers, private labor lawyers and a state legislative director for the Society for Human Resource Management (“SHRM”) was the potential for misuse of social media sites, which could conceivably lead to discrimination or harassment claims.
The panel acknowledged the benefits of using sites such as LinkedIn and Facebook as tools in identifying candidates for employment. The panel warned that the information obtained from these sites can be a double-edged sword since improper use of such information may be discriminatory since most individuals' race, gender, general age and possibly ethnicity can be discerned from information on these sites. The EEOC has a well-settled position that personal information-such as that gleaned from social media postings-may not be used to make employment decisions on such prohibited bases.
Another topic addressed at the meeting was the potential for use of personal social media accounts in manners that could result in claims of workplace harassment. The panel noted that employers could potentially face liability for a hostile work environment, for example, where employees post harassing or derogatory information about coworkers away from the workplace, if the employer was aware of the postings, or if the harassing employee was using employer-owned devices or accounts. As with any form of harassment, employers should take social media based harassment seriously and take prompt remedial action where warranted.
Employers can use social media as a valuable tool in evaluating potential candidates for employment, i.e. purposes that are not discriminatory or harassing. However, the EEOC advises taking a few steps to reduce the potential exposure. First, if an employer wishes to conduct a social media background check, it is better to have a third party or a designated person within the company who does not make hiring decisions doing the check. Next, employers should only use publicly available information, which will vary from employee to employee depending on the individual’s privacy settings. Finally, employers should never request passwords for social media accounts. In fact, several states have made it illegal for employers to request employees' social media user names or passwords.