EEOC Tackles Social Media

Attorneys tell commissioners social communications have reshaped the world of work

By Aliah D. Wright Mar 13, 2014

An employer can look at its employees’ posts on social networking sites, but it needs to be careful in how it responds—or does not—to what it sees there.

In testimony before the U.S. Equal Employment Opportunity Commission (EEOC) on March 12, 2014, employment law attorney Jonathan Segal, speaking on behalf of the Society for Human Resource Management (SHRM), said: “To ignore social media today is like ignoring e-mail 20 years ago. Social media is no longer cutting-edge; it is now mainstream.”

Segal joined four other attorneys to discuss how social media use in the workplace is affecting the enforcement of equal employment opportunity laws.

“Whereas 10 years ago, an individual’s online presence was largely limited to a profile-based site she or he curated, today a person’s Web presence is spread over any number of individual websites and can include ‘likes,’ comments on websites and connections on LinkedIn,” said Lynne Bernabei, a partner at Bernabei & Wachtel PLLC.

“A conversation between an employee and an employer or between an attorney and a client about the employee or client's social media presence is no longer as simple as inquiring about a person’s Facebook profile or their Twitter handle.”

Also testifying were Renee Jackson, an associate at Nixon Peabody LLP, and two EEOC attorneys, Carol Miaskoff, acting associate legal counsel in the Office of Legal Counsel, and Rita Kittle, senior trial attorney in the EEOC Denver Field Office.

The attorneys delved into social media privacy concerns and whether employers have the right to ask for passwords (12 states ban the practice).

Experts also addressed discrimination, recruitment, screening, hiring, harassment, records retention, social media policies, accessing employees’ private social media postings, discovery and background checks.

“I have heard it said there are only two times when a person is perfect: birth and the job interview,” quipped Segal, a partner in the Philadelphia office of Duane Morris LLP. “Social media is but one way to enhance the background check to determine whether a candidate should be hired.”

He added, “Contrary to what some may believe, the fact that some employers screen applicants by looking at their social media sites does not mean that the use of social media results in widespread exclusions.”

In fact, according to SHRM research from 2013, of the organizations that screen candidates by viewing online search engines or social networking websites, only 15 percent have used information from online search engines, and 30 percent from social networking websites, to disqualify applicants.

There shouldn’t be an on-off switch when using social media in the hiring process, Segal said; “rather, key questions that should be considered include when it is done, what is looked at, who is doing the looking, and what is and is not considered in the decision-making process.”

In the end, however, it’s up to workers to police their own social media use, especially when people can take screenshots and share status updates.

“Things you think are private can very quickly become public,” warned attorney Rene Jackson.

Because with social media “… everybody who participates is carrying around a box of their private life,” said EEOC Commissioner Constance Barker.

Commissioner Chai Feldblum added, “Every tweet is a choice.”

The commission record is open for 15 days, and the public is invited to submit comments at

Aliah D. Wright is editor/manager of the technology and business leadership pages for SHRM Online. She is the author of the best-selling A Necessary Evil: Managing Employee Activity on Facebook, LinkedIn…and the Hundreds of Other Social Media Sites (SHRM, 2013).


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