Social media use at work raises employment discrimination concerns

Experts say social media use at the office may involve EEOC laws

Social media is everywhere. It’s at home, at the gym, at the grocery store, at school, and even at work. The use of social media has become so pervasive in today's workplace that it is even having an impact on the enforcement of federal laws.

A meeting was recently held with the U.S. Equal Employment Opportunity Commission (EEOC) in Washington DC about this very topic. The meeting helped the EEOC understand exactly how social media is being used in the office and what impact it may have on the laws enforced and on the mission to fix discriminatory practices in the workplace.

"The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns," said EEOC Chair Jacqueline A. Berrien at the meeting.

Jonathan Segal, who spoke on behalf of the Society for Human Resource Management (SHRM), explained that employers use different types of social media for different reasons including: employee engagement and knowledge-sharing; marketing to clients, potential customers and crisis management; and for recruitment and hiring of new employees.  In fact, SHRM found in a recent survey that in 2013, 77 percent of companies used social networking sites to recruit candidates, up from 34 percent in 2008.

The use of social networking sites can provide a valuable tool for finding quality candidates by searching for qualifications. However, the wrong use of information obtained from these sites may be discriminatory since most individuals' race, gender, general age and possibly ethnicity can be discerned from available information.

According to Renee Jackson of Nixon Peabody LLP, social media should be one of many tools used in recruitment. When it comes to conducting a social media background check, it is better to have either a third party or a designated person within the company who does not make hiring decisions do the check, and only use publicly available information. There are, in fact, already four states with laws prohibiting employers from requesting passwords from applicants, while several other states have such laws pending.

The hiring process is not the only time that social media is relevant. Lynne Bernabei, of Bernabei & Wachtel PLLC, explained to the EEOC how use of personal social media accounts could figure into situations of workplace harassment.  "The issue is further complicated as more employers use a 'Bring Your Own Device' policy, in which they require or expect employees to use personal laptops, smartphones, or other technology while on the job," she said.

Commissioner Victoria Lipnic said, "As policymakers and regulators, it is our challenge, and I believe our responsibility, to do all that we can to ensure that our interpretation and administration of the laws within our charge are as current and fully-informed as possible."

For more news on social media, check out these articles:

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Technology: The 10 best practices for drafting a lawful social media policy

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Contributing Author

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Amanda Ciccatelli

Amanda G. Ciccatelli is a Contributing Writer for InsideCounsel, where she covers the patent litigation space. Amanda earned a B.A. in Communications and Journalism from...

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