An interview with EEOC attorney Edward Loughlin on how employers can mitigate risk on social media.

The United States Equal Employment Opportunity Commission (EEOC) can be synonymous with discrimination charges, enforcement and litigation. But an interview EEOC Senior Trial Attorney Edward Loughlin showed us the human side of the agency and provided guidance to help employers mitigate risk on social media.

Below are some highlights from our interview:

Tell me about what the EEOC does and your role.

The EEOC was created on July 2, 1965 and is an executive agency that enforces Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act of 1990(ADA), the Age Discrimination in Employment Act of 1967 (ADEA), the Equal Pay Act (EPA), and the Genetic Information NonDiscrimination Act of 2008 (GINA)- which is our newest statute that became effective on November 21, 2009. GINA is also the only EEOC statute that specifically references social media in the regulations. What we try to do is enforce those laws to the best of our abilities through our enforcement arm and our legal team.

A trial attorney at the EEOC has three main responsibilities: (1) assisting our Enforcement staff during their investigations; (2) litigating the Commission’s cases in federal courts throughout the country; and(3) helping employers prevent discrimination before it occurs through outreach and education.

The Commission’s role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding. If we find that discrimination has occurred, we will try to settle the charge. If we aren't successful, we have the authority to file a lawsuit to protect the rights of individuals and the interests of the public. We do not, however, file lawsuits in all cases where we find discrimination.

With respect to education and outreach, The Commission’s Strategic Plan for Fiscal Years 2012-2016 and Strategic Objective II specifically lists preventing employment discrimination through education and outreach as a strategic goal. And I can tell you the Commission takes this responsibility very seriously. When I speak to employers, I joke with them and explain I’d much rather see you here and answer your questions on the front end rather than see you in the courtroom because I’m not as friendly or approachable in the courtroom. It really is best for everyone if we can do things on the front end rather than on the back end and prevent discrimination before it occurs.

When it comes to employers using social media, there seems to be opponents that believe it’s risky, and advocates that believe it’s a good idea. As employers are getting into social media, share with me some of the pitfalls, how they can go about it in a smart and educated fashion and how to do it right.

What I try to tell employers is that using social media to recruit and monitor your employees is risky. What you want to do is take it from just being risky to a calculated risk. There are times when it’s appropriate; there are times that it’s not and understanding the difference is extraordinarily important. Employers need to understand that social media’s greatest asset (the wealth of information it provides to both employers, current employees, and applicants) is also its greatest liability when it comes to employment law because you’re getting access to information that’s protected under the statutes the EEOC enforces. And the EEOC isn’t the only federal agency you need to worry about. The National Labor Relations Board (NLRB) is a big player when it comes to social media in the workplace. They’ve issued three separate sets of guidance when it comes to the proper ways and the improper ways to use social media. Once you’re done worrying about the NLRB and the EEOC , there are myriad of state laws that need to be addressed. So as you can already tell in the few minutes we’ve been talking, it gets very complicated. And it is, but at the same time the fundamentals of employment law stay the same. So if you have an issue come up with Title VII and it involves social media, apply the fundamentals you know for Title VII to social media. Don’t get lost in the idea, “Well it happened on Facebook, I don’t know what to do.” Yes, you do. You’re getting lost in the fact that it’s on social media.

Because there are so many details, and companies may not currently have the resources to know them all, do companies throw in the towel or is there a solution? Are there some resources that they can go to or at least a starting point?

A lot of companies are taking what I not so affectionately call the “head in the sand” approach. That it’s very confusing, there are a lot of different laws that they have to comply with and they’re thinking “We haven’t updated our EEO policy to deal with social media, we haven’t run into a problem yet, so we’re going to leave it alone.” That’s called the “head in the sand” approach because that’s only really good if you want to get sand in your hair. If you really want to deal with these issues, you need to take the time and come up with a thoughtful policy that works for your company. It’s not a one-size-fits-all approach. Some companies need to have a different policy than other companies. But in terms of resources, everyone needs to read the separate pieces of guidance issued by the NLRB and everybody needs to be familiar with the laws the EEOC enforces.

Another great resource for employers, because state law is starting to catch up with this as well, is the National Conference of State Legislatures. They have a website - if you can think up a legal issue, they have a database that compares the law to California, to Arizona, to Wyoming, to Virginia. I encourage employers to look at that and not just for social media, but also for traditional employment law issues as well because the EEOC only has a certain number of protected categories that we can enforce – race, national origin, things like that. States can add more on top of that list. D.C. for instance, has more protected categories than any other state in the country. So, an employee in D.C. can have more protections than an employee in Virginia or an employee in Arizona and employers need to be familiar with all of these laws and regulations.

How should an employer respond if it is receiving posts with negative comments about an experience that a job seeker or potential new employee has had? Or, how does an employer mitigate or eliminate that circumstance?

First, I don’t know that you’re ever going to be able to eliminate that one employee from doing something completely inappropriate and saying a bunch of things on the internet that are not so flattering about your company. But what you can do is have an after-action plan. From the EEOC’s perspective, first we need to make sure we have jurisdiction. That if it doesn’t involve Title VII, the ADA, the ADEA or any other statutes that we enforce, the EEOC is not going to get involved. The NLRB, more likely than not, would be involved in the situation that you just described. The NLRB is very focused on social media policies that are overly broad. If you want to draft a good social media policy that’s compliant with the NLRB, compliant with the EEOC, you want specificity. You just don’t want something broad saying you have to behave well on and off the job site. You need to have something that’s more specific.

What are some examples in which employers could violate laws or get into trouble with the EEOC around social media?

There are a few things that have the potential to create an EEOC-related issue. First, social media allows companies (intentionally and unintentionally) to acquire information that falls under one of our protected categories. In most cases just having that information isn’t a problem, it’s whether you act on that information. For example, let’s say you interview a potential candidate and do a social media search after the interview. During that search, you discover that she’s 8 weeks pregnant. If you don’t hire her, you can no longer say, “I had no idea she was pregnant” and your response to the EEOC just got more complicated. Second, watch out for disparate treatment. Don’t run social media searches on men, but not women, etc., as that would be a violation of our statutes. Finally, keep an eye out for social-media related charges based on disparate impact. What disparate impact means is that your policy, on its face, is neutral, but it has a disparate impact on a certain group of individuals.

Disparate impact cases are more commonly seen in the areas of arrest and conviction records, credit records, things like that. Where it could be a problem with social media, and I don’t want to alarm people because I haven’t see it yet, is that the demographics of Facebook and Twitter suggest that there might be a disparate impact claim down the road. How would that be? The demographic breakdowns of social media, which are constantly changing, suggest that certain social media platforms are more popular with African-Americans, people over the age of 40, etc.

So let’s say I’m a 48 year-old consultant and want to apply for a job with your company. You only advertise on Facebook, LinkedIn and other social media platforms. I don’t know about it because I’m not on Facebook or LinkedIn. I file a charge with the EEOC that says I didn’t know about this opportunity because of my age, or whatever my protected category happens to be. I have not seen this type of case yet, not do I know of one. But when I look and I crunch the numbers, I wonder how soon it will be before someone tries to create a disparate impact case from social media. I have no idea whether it would be successful or not, but I predict that someone will try it.

So how do employers protect themselves?
First, employers can protect themselves by actually dealing with this issue. I continue to be alarmed by the amount of employers who refuse to address these issues as it relates to their EEO policy. Second, employers can protect themselves by having a neutral policy. If you’re going to do Facebook searches, don’t make it easy for us with a disparate treatment claim – only running it on African Americans, only running it on males, only running it on Catholics. Don’t do that. So have a neutral policy, but this comes back to my third point, which is understand your business and decide whether you want to take the calculated risk (not a risk) of delving into this area. Do you want to open yourself up to a disparate impact claim filed by a 48 year-old just because you wanted to see what was on his Facebook page? This is why the risks need to be calculated and not just risks.

Finally, your HR team, your hiring managers, and really anyone with decision-making authority needs to be trained. I mentioned earlier that state EEO laws can be different then federal EEO laws and that’s something employers need to be aware of if they’re going to do social media searches. Under the laws the Commission enforces, what political party you’re affiliated with is not a protected group. If someone comes into an EEOC office and wants to file a charge saying “I didn’t get a job because I’m a republican” or “I didn’t get a job because I’m a democrat”, the EEOC can’t do anything about that. But under D.C. law, if you decide not to hire someone because of political party affiliation, you have violated their version of an EEO statute. And these laws can be different in every state. We talked about the protected age group. Under federal law, it’s 40 and up.

Under other state laws, there’s no state minimum, in some, it’s 18 and up. It depends on where you are, so what employers need to understand is that their employees in D.C. might enjoy more protections than their employees in Indiana. As a result, their EEO policy, hiring policy, etc., can’t be just another book on the shelf. Social media is a very fluid area of the law and if it’s just something you write and forget about it, it’s going to come back and get you because these changes through state law happen very, very frequently.

So you need to understand this area of the law is fluid, particularly social media, and you need to update your policies quickly so you don’t run into problems down the road. A lot of this is preventative and helps employers mitigate their risk.

Where do employers find this information and how often do they need to go back and check where the laws are being updated so they can stay on top of it?
As I said, this area of the law is very fluid, and the technology really outpaces the law, so how often do they need to go back and check? All of the time. Hopefully their attorneys are keeping them updated…That’s why they’re paying them their fees. For example, the idea of “shoulder surfing” i.e., asking for an applicant’s username and password, is a topic that gets a lot of attention. Twelve states have now banned the practice and many more are considering legislation that would ban it. It really is an alarming practice.

I can’t even imagine an employer asking that!

I think it’s one of those situations where it does not happen with a great deal of frequency, but the fact that it happens at all is really troubling. In many ways, these laws might be a solution searching for a problem, but one time is too many. I’ve spoken around the country on this topic and I’ve had several employers sheepishly admit that they do this sort of thing, which always lead me to gently suggest they stop. And I also really question the value of doing that. A recently academic study (covered in this recent news article) suggests that there is not a correlation between job performance and social media activity.

Stay tuned for part two and see Ed speak at the DirectEmployers 2014 Annual Meeting & Conference, March 26 & 27, 2014 in Washington, D.C. To learn more about the event and register, visit http://deam14.directemployers.org.