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EEOC Discusses Social Media and Potential for Employment Practices Violations


EEOC Discusses Social Media and Potential for Employment Practices ViolationsQuestions Raised Over Employer Use of Social Media for Hiring, Recruiting and More

The way in which we communicate (texting, social sharing, posting) has evolved over the last several years so much so that the Equal Employment Opportunity Commission (EEOC) organized a “listening session” just a couple of weeks ago to discuss the potential risks of social media with regard to employment practices. The session come about as a result of the increase use of Facebook, LinkedIn, Twitter and other social media platforms by companies for recruiting purposes and to learn more about job applicants.

“The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns,” said EEOC Chair Jacqueline A. Berrien, in a press release issued by the agency. “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.”

Why the Concern?

According to CareerBuilder, 37% percent of hiring managers use social networking sites to research job applicants, with over 65% of that group using Facebook as their primary resource. Career Builder’s findings cites that hiring managers (HR) looked at social networking sites to see if the applicant “presents him- or herself professionally”, to assess whether the individual would be a good fit with the company’s culture, and to learn more about the candidates’ qualifications. Some hiring managers even look at Facebook for reasons not to hire an applicant, while many employers conduct Google searches to get a read of one’s “public persona”.

Moreover, the Society for Human Resource Management cites that 77% of companies involved in its study group indicated they were using social networking sites to recruit candidates for specific jobs, which is up from 56% in 2011 and 34% in 2008. In this specific group, LinkedIn was most popular, followed by Facebook and Twitter. Far fewer employers in this group said they used social media to screen applicants, often fearing legal exposures.

Once concern of the EEOC is whether the practice of using social media to vet job candidates is potentially discriminatory against older candidates who may not be on these platforms. Additionally, social media can provide employers with information they generally can’t inquire about during an interview, such as someone’s age, family medical history, religion, or pregnancy status. As federal laws forbid employers in using this information to discriminate when hiring, the fact that they get access to this information could potentially spark allegations from individuals who suspect an unfavorable action against them is related to what was found through Facebook, LinkedIn, etc.

In an article in the Wall Street Journal about this very issue, a case was cited involving a 61-year-old woman who alleged that a federal agency didn’t hire her because of her age. She contended the agency’s recruitment through social media “had a disparate impact on older workers because they use computers less”. The EEOC sided with her initially, but she lost on appeal because of lack of evidence.

Another concern by the federal agency involves posts by employees about co-workers. If a post about a fellow employee makes him or her uncomfortable, would an employer be liable for a hostile workplace environment? Moreover, supervisors who “friend” subordinates on Facebook could witness online exchanges that reveal harassment that the supervisor would be compelled to report. Employers aware of such postings risk being liable for a hostile work environment.

One of the takeaways from the EEOC session is for employers to have strong policies in place regarding recruiting and hiring practices. While social media can be a part the tools used in the recruitment process, attorneys who met with the EEOC recommend that it’s better to have either a third party or a designated person within the company who does not make hiring decisions check the social media sites. What’s more, only publicly available information should be used, and usernames and passwords for social media accounts should not be requested (which is prohibited in several states and number of other states having such laws pending).

Axis Insurance Services specializes in Employment Practices Liability Insurance (EPLI), and can provide you with a comprehensive solution to protect your firm in the event of allegations involving workplace-related issues, such as discrimination, sexual harassment, wrongful termination, wage-and-hour disputes, among others. Please give us a call at (877) 787-5258 to find out how we can help protect your firm.

Sources: EEOC, Wall Street Journal, Career Builders

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Blogged on: March 31, 2014 by Mike Smith
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