By Christopher DeGroff and Paul Kehoe

Yesterday, the EEOC held a public meeting entitled Social Media In The Workplace: Examining Implications for Equal Employment Opportunity Law.  The Commissioners welcomed five individuals to testify regarding how the ever-changing social media platforms impact the workplace in areas such as recruitment and hiring, harassment, records retention, and litigation.  The meeting was intended to be an information gathering session for the EEOC rather than a signal that the EEOC would consider adopting guidance regarding an employer’s use of social media information.   

Overall, those testifying from a management perspective stated that employers use social media as just one part of its recruitment activities, and generally less so when screening applicants.  Those testifying on behalf of workers, however, indicated that employers heavily use social media background investigations and make hiring decisions based on what they find.  One participant even suggested that states adopt laws prohibiting employers from using available social media information in employment decisions; a far cry from the current state prohibitions on employers seeking login and password information from current and potential employees. 

Both management and worker representatives sparred over the appropriate boundaries of obtaining social media postings during discovery.  Worker representatives considered employers’ attempts to discover social media postings as unproductive, seemingly regardless of whether the postings were relevant to mitigation of damages or other defenses.  Management representatives disagreed, noting that all relevant, non-privileged information was subject to discovery. 

The public/private debate loomed large both for those testifying and the Commissioners posing questions.  Whether using social or professional networking platforms, commenting on blogs, or posting photos and videos to YouTube or Snapchat, employees believe that their postings are private, and therefore, not subject to inspection by their current or potential employers.  On the other side of the spectrum, many attending the conference today have difficulty accepting claims of privacy where an individual has broadcasted information to hundreds of his or her family, friends, co-workers, and casual acquaintances.  Overall, the workers’ representatives noted that allowing employers to investigate a plaintiff’s or class member’s “private” social media postings may have a chilling effect on participation in litigation, unconcerned that employers are entitled to all relevant, non-privileged information in defending themselves against either a private plaintiff or the EEOC, regardless of whether one believes the information to be “private.” 

When it comes to social media, the line between public and private activities is blurred at best, and non-existent at worst.  While new EEOC guidance is currently not in the cards, employers need to take care to review its social media policies or consider adopting a narrowly tailored policy for many reasons, including seeking qualified candidates, promoting brand awareness, avoiding harassment claims, and more.

Readers can also find this post on our Workplace Class Action blog here.