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The EEOC held a public meeting yesterday that examined how social media is being used in the work place and how it may impact the enforcement of the laws by the EEOC. Public hearings are rare; in the last two years, the Commission has held hearings on pregnant workers and workers with care giving responsibilities; use of arrest and conviction records in employment decisions; wellness programs; and national origin discrimination. In a press release issued after the meeting, the Commission stated the a major area addressed by witnesses is the increased use of the social media as a source of discovery in discrimination litigation. It noted that one of the speakers(a senior EEOC trial attorney from Denver) warned that the increased effort to access private social media communications may have a chilling effect on persons seeking to exercise their rights under the statute. It is the "chilling" issue that employers need to watch. Compared to the NLRB, the EEOC's hearing in 2014 is relatively late to herald the agency's concern over social media. The Acting General Counsel of the NLRB issued a series of memoranda concerning employer policies governing the use of social media by employees on 8/11, 1/12/, and 5/12. If the purpose of the hearing were to caution employers about the risk of finding out information that should not be used, it would seem that the expression of that concern is a little late. It would be the rare HR representative who is just now realizing that within the information which can be harvested about employees or applicants on the internet or through social media is information which can not be lawfully considered in making employment decisions. Such employer forays into social media give new meaning to the phrase "too much information." At the hearing, witnesses stated that employers may be liable for a hostile work environment where employees post derogatory or harassing information about employees when the employer was aware of the postings or when the employer's devises or accounts were used. It was noted that employers seek access to employee social media accounts as part of discovery. One issue discussed is the access to posted material by an employee which is potentially relevant to the claim or defenses. Of particular interest to employers are the suggestions by one speaker that the EEOC develop guidance on the extent to which an employee's out of work social media activities can be used as evidence for which an employer may be liable and that the EEOC should articulate that an employee's use of social media to support a discrimination claim of another employee or to advocate for changes in the work place to eliminate discrimination are protected activities that cannot serve as a basis for discipline. It is this last suggestion concerning protected activities which echoes a statement made by the trial attorney from Denver that increased employer effort to access private social media may have a "chilling" effect on persons seeking to exercise protected rights. It may be the hearing marks the first steps of the EEOC to begin its oversight of employer policies in a way similar to that used by the NLRB to carve out employee protection from retaliation based on use of social media. The next step in the progression would be for the EEOC to bring suit against employers who have disciplined employees under policies which would be viewed as having a chilling effect.
For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.
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