This is the second part of a blog interview with EEOC attorney Edward Loughlin. Read part one.
Are there any steps for damage control if someone such as an employee is saying disparaging remarks on social media about your company?
If an employer notices that an employee is posting derogatory information about the company or somehow damaging the company’s brand, what I would encourage that employer to do is one, know that in that situation you probably really need to worry about the EEOC. I mean it’s always possible that a protected category could come into play but you don’t need to worry about the EEOC in the situation you described, as it won’t implicate our laws. But you need to do a thorough investigation and you need to make sure you’re doing it in a very transparent and a very even-handed manner. That if Molly-down-the-hall did the same thing that Bob is doing, but you didn’t come down hard on Molly but now you’re coming down hard on Bob and they’re really doing the same thing, that’s something you want to avoid.
We’ve also spent a lot of time talking about social media on the front-end (with recruiting and hiring) and on the back-end (with termination), but what about in the middle? What about your current employees and how social media can create a variety of EEOC-related issues, like harassment. I know a lot employers have employees who are friends with each other on various social media platforms. From an EEOC perspective I don’t care and none of the laws we enforce get implicated by their connection, unless those two employees start interacting with each other in a way that violates one of our laws. Let’s say Bob, we’re going to pick on Bob again, is friends with Sally on Facebook and starts to sexually harass her and starts to put comments on her page that she finds unwelcome. That might not be an EEOC issue at all if it’s not happening at work because clearly that’s where our jurisdiction comes into play. But if he’s doing that from a work computer at noon, if it starts to impact their relationship, now you have to worry about harassment on social media. And what if George, who supervises Bob and Sally, is also friends with them on Facebook and sees this behavior? What are his obligations as a supervisor? I tell supervisors and managers to think very long and very hard when considering connecting with an employee via social media about whether they want those extra burdens.
I think the other thing is that one of the best kept secrets of the EEOC is that trial attorneys like myself, as well as many of our other employees, are available to come to conferences or individual companies and organizations, and train people on our laws. We try to really target small businesses as well because we recognize that they may not have the budget to really have a full-time outside counsel to deal with this because again, we want to help employers comply with the law and we like to do it on the front end. So if you ever need anything I’d encourage you to call over to your local EEOC office, call over to EEOC headquarters, or visit our website (http://eeoc.gov/eeoc/outreach/index.cfm) and say you would like training on something and I’m confident the EEOC will find someone to assist you with your training needs. You could also call DirectEmployers as they know how to get a hold of me!
That’s great advice because I’m sure a lot of times you’re seen as the bad guys.
A lot of people kind of roll their eyes when I say we’re neutral fact finders during the investigation. But we are. And if for some reason our investigators are not being neutral fact finders, they’re not following the procedures set forth because our role in the investigative stage is to fairly and accurate assess the allegations in the charge and make a finding. We’re interested in complying with the statutes. We’re not interested in finding cause just to find cause. Indeed, if you look at our statistics for FY2012, the Commission only found reasonable cause in 3.8% of the pending charges (http://eeoc.gov/eeoc/statistics/enforcement/all.cfm). So we really want to help people comply, and if we can do that through events like this, which bring a big group of employers together, or if it’s as simple as one of us talking around your boardroom table to your HR team, we’re always happy to do that. I can speak for myself, I enjoy doing it and I can speak for some of my colleagues at the Commission because I know it’s something they think is important as well.
It sounds like you’re an advocate for preventative practices.
Absolutely. I don’t want to have to see employers in a courtroom. I really believe that the vast majority of employers want to do the right thing, so I’m a big fan of helping employers comply with the law on the front end. I don’t want to have to deal with it on the back end, so if there’s anything we can ever do to help with that, let us know. Maybe we can’t help you out, but it’s worth trying.
Is there a social media network that is safer or less risky?
No. They’re all risky. What it really comes down to, and not to belabor the point, which is that employers need to sit down and decide for their organization, is the use of social media worth the risk? Is it worth having a protracted EEOC investigation because your company, without developing a plan, really needed to get background information on people? Ask why are you doing it. I think some employers do these social media searches without a plan, without thinking about it, and without having their people properly trained. Think long and hard about why you are doing it. If you have a good legitimate business reason, I’m not going to tell you not to do it, but I am going to tell you that you may create a problem down the road for yourself with the NLRB and/or the EEOC. If you have a third party do it, you have Fair Credit Reporting Act provisions you need to worry about. If you’re illegally accessing somebody’s computer, you have the Stored Communications Act you need to worry about, which has criminal and civil penalties. It is truly a minefield and that’s why I say that a “one-size-fits-all” approach is not smart when it comes to EEOC-related social media approaches. You need to know your company and you need to get it right. Or to blatantly steal a line from Tom Colicchio, don’t worry about the recipe, you just need to “cook it until it is done.”
Do you have suggestions for when company sets up a careers page on social media?
From an EEOC perspective, don’t forget about your recordkeeping requirements. All of our statutes have certain recordkeeping requirements for receiving applications. Don’t forget that if you’re getting resumes from Facebook, LinkedIn, or wherever, you still have those recordkeeping requirements. And I have seen that happen a lot, where we ask for information during an investigation, “Well where did you get the resumes from?” “Oh we got them through LinkedIn.” “Okay, where are they?” “Uh we were supposed to keep those?” “Yeah, you were.” So don’t forget about the recordkeeping requirements of your laws. Again this comes back to, don’t get lost in the bright lights of “it’s Facebook, it’s LinkedIn.” Go back to your fundamentals of the employment laws that are being enforced. In terms of trademarking and copyright, that’s out of the jurisdiction of the EEOC – I would just advise companies that they need to talk to an experienced employment lawyer to ensure they’re setting up things the way they need to.
Do you have any other last words of advice, tips, or cautionary tales from an EEOC perspective that you would like to share?
From an EEOC perspective, employers can prevent most issues through proper training and policies that are consistently applied to avoid a disparate treatment claim. Social media can truly be a wonderful resource for employers to use, but without proper education and policies it’s just risky. You can never completely remove the risk, but you can live with a calculate risk. I also want employers to specifically remember GINA as it’s our one statute that references social media in the regs. They need to learn how GINA can be implicated by social media. GINA absolutely prohibits the use of genetic information to make employment decisions and also bans its acquisition unless the acquisition falls into one of the specifically enumerated exceptions. For example, let’s say you run a social media search of an applicant and see a picture of the applicant standing under a Susan G. Komen “Race for the Cure” Banner and she is wearing a t-shirt that reads, “Racing for Mom: 6 years cancer free.” By simply looking at that picture you have acquired that applicant’s genetic information because genetic information also includes family medical history. In that example, your company would probably be fine as it would fall under GINA’s inadvertent acquisition exception, but you can see how easily social media can implicate our laws.
A big thank you to Ed for allowing us to pick his brain and delve into how employers can make calculated risks when using social media for recruiting. Register to attend the DirectEmployers 2014 Annual Meeting & Conference, March 26 & 27, 2014 in Washington, D.C. where you can hear him speak and have a chance to chat in person. Visit http://deam14.directemployers.org for more information.