EEOC Addresses Employers’ Use of Social Media in Hiring Decisions at Recent FTC Workshop

At a panel discussion held on November 12, 2014, NLRB General Counsel Richard Griffin, NLRB Member Harry Johnson, III, and EEOC Commissioner Chai Feldblum discussed several topics important to employers, including the use of social media to screen job applicants. All of the panelists agreed that employers must be careful when reviewing social media profiles in connection with hiring decisions, as in doing so, employers inevitably will be exposed to information about protected statuses, such as race and gender.

Commissioner Feldblum presented the example of an employer learning prohibited medical information about a candidate, explaining that, “if [] there is any evidence that the person doing the hiring . . . used [protected] information to make an employment decision, bingo, then you do have a violation.” Johnson added that even where the individual making hiring decisions does not review the social media activity, the employer still could be subject to liability, as the NLRB has “a pretty liberal” standard for “imputed knowledge.”

As we have discussed in earlier posts, both the EEOC and the NLRB, through their representatives’ comments and their decisions, have made clear that the issue of employers using social media as part of their hiring process is one to which they are paying specific attention. Employers, therefore, should proceed with caution before using social media to screen applicants.