Breaking New Ground, EEOC to Scrutinize Employer Social Media Policies

Printer-friendly version

Social media issues should already be on employers’ radars, especially in light of a ruling last year by the National Labor Relations Board that Facebook “likes” constitute legally protected activity. 

Now this year, the Equal Employment Opportunity Commission is joining the fray and is expected to scrutinize employer restrictions of employees’ social media use.

In December, at a meeting of the EEOC’s Select Task Force on the Study of Harassment in the Workplace, the Commission discussed how social media can be used as a positive platform for workers’ rights, such as spreading an anti-harassment message or bringing complaints to the attention of the public. 

The EEOC has also held other meetings addressing how social media platforms serve as a kind of “modern day water cooler,” affecting the workplace in areas such as recruitment and hiring, harassment, records retention and litigation.

Experts expect the Commission to focus on employers’ use of social media against such water cooler activity. 

Areas of potential scrutiny include social media activity perceived as restricting employees’ social media rights in a way that could inhibit their ability to use it for reporting harassment and other discriminatory behavior. 

The Commission has suggested that this could constitute the employer attempting to or obstruct employees’ rights to complain about discrimination, therefore opening the door to an “obstruction” charge against the employer.

“An employer can’t retaliate against an employee for alleging discrimination,” says John Sarno, president of the Employers Association of New Jersey. “Even a group of employees are protected by Title VII [of the Civil Rights Act of 1964].”

Sarno believes that allowing a charge for “obstructing” employees from discussing a charge with each other would be breaking new legal ground. 

But the law has long protected employees would “oppose” workplace discrimination.

An in recent guidance, the EEOC has stated that an employer telling employees not to discuss discrimination with co-workers is a “flagrant” violation of Title VII.

“The EEOC is now suggesting, like the national labor board, that monitoring social media could have a chilling effect on employees who want to discuss discrimination among themselves” says Sarno.

A report issued in 2012 General Counsel’s office- NLRB, examined seven employer policies governing the use of social media by employees.

In six cases, the General Counsel’s office found some provisions of the employer’s social media policy to be lawful and others to be unlawful. In the seventh case, the entire policy was found to be lawful. Provisions were found to be unlawful when they interfered with the rights of employees to talk among themselves wages and working conditions.