Legal

EEOC Holds Public Meeting on Social Media in the Workplace #socialEEOC

By Jon Hyman

Mar. 13, 2014

The Equal Employment Opportunity Commission held a public meeting on the use of social media in the workplace, and its impact on the enforcement of equal employment opportunity laws yesterday. The commission heard testimony that addressed issues such as recruitment and hiring, harassment, and discovery.

According to EEOC Chair Jacqueline Berrien, “The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns. This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace.”

Commissioner Victoria Lipnic added, “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.” Thus, the EEOC held the meeting to gather information, not to provide guidance.

Rather than summarize the hours of testimony (which you can read for yourselves here), I want to focus on the following question that the EEOC posed on Twitter (where else) during the meeting:

".#socialEEOC CH Berrien asks: Are these issues truly new or old #EEO issues with new technology? Comm. Lipnic begins opening remarks. #EEOC"

The answer is that these legal issues are not new; all that is new is the communication media impacting those legal issues. For example:

  • Social media hasn’t changed the law of workplace harassment, but it has opened up new opportunities for employees to harass each other by permitting employees to stay connected to each other around the clock. Thus, employers must guard against and investigate off-duty harassment.
  • Most employers know that they can’t ask a job applicant questions about their medical history, but they flock to Google and Facebook where they can learn that very same protected information.
The lesson here isn’t so much how social media is impacting EEO laws, but instead how employers are adapting their current policies and training to adapt to these new technologies. Does you harassment policy and training address the risks of social media? Do you train your recruiters on the right way to conduct an online background search? And do you understand the mechanics of Facebook, Twitter, Instagram, etc., so that you can ensure that all of your employees, from the top down, understand the technology. Without an understanding of the technology, your employees will be lost trying to understand the legal implications of its use.
 
How you answer questions like these will tell you if your organization is nimble and responsive enough to adapt to the impact these new issues are having on old laws.
 
Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.
Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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