The Equal Employment Opportunity Commission (EEOC) is starting to poke around one of the workplace’s biggest trouble areas. 

The agency recently held a meeting to gather info about the growing use of social media and if and how it affects laws the EEOC enforces.

Five individuals spoke with agency officials at EEOC headquarters about how social media affects hiring, recruiting, harassment, retention and more.

Who was involved?

  • Jonathan Segal, speaking on behalf of the Society for Human Resource Management (SHRM), explained the benefits (engagement, knowledge-sharing) and the issues (discrimination) that social media usage can add to the workplace
  • Renee Jackson of Nixon Peabody LLP recommended that social media background checks only be performed by third parties so companies don’t expose themselves to sensitive info
  • Rita Kittle, a Senior Trial Attorney in EEOC’s Denver Field Office warned that the increased effort to access private social media communications may have a chilling effect on persons seeking to exercise their rights under federal anti-discrimination laws
  • Acting Associate Legal Counsel Carol Miaskoff highlighted the handful of cases that the EEOC has been involved in that have dealt with social media, and
  • Lynne Bernabei of Bernabei & Wachtel PLLC noted that even if employees post harassing or derogatory information about co-workers away from the workplace, an employer may be liable for a hostile work environment if it was aware of the postings or if the harassing employee was using employer-owned devices or accounts.

Is social media guidance on its way or no?

So can we expect guidance from the EEOC about the “correct” use of social media, similar to the agency’s controversial criminal background check guidance?

No — at least not yet, according to Seyfarth Shaw attorneys Christopher DeGroff and Paul Kehoe on the Workplace Class Action blog:

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.

That said, DeGroff and Kehoe do have some recommendations for employers on how to stay safe regarding social media usage:

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.

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