EEOC and NLRB Continue to Focus on Employers’ Use of Social Media

The Federal Trade Commission recently hosted a public workshop entitled “Big Data: A Tool for Inclusion or Exclusion?” in which it addressed the increasing number of legal issues raised by companies’ collection, analysis, use, and storage of data.  While increasing access to big data provides companies with benefits, such as improved product offerings, more efficient manufacturing processes, and more effectively tailored advertisements, it also raises potential issues, especially in the employment law context.

During the conference, Carol Miaskoff of the Equal Employment Opportunity Commission spoke at a panel addressing the implications of employers’ use of social media and other self-reported data to screen potential employees.  Miaskoff explained that looking at social media “as part of the screening of applicants puts employers in a vulnerable position.”  She stated that even if employers just “glance” at the profiles, they are exposed to a “plethora of information about protected statuses,” such as race, gender, sexual orientation, or disability.  Because the use of social media in recruitment and hiring only violates the law in specific circumstances, Miaskoff stressed the importance of detailed recordkeeping for employers.  She also stated that the EEOC is now pushing “the kind of record keeping that can facilitate verification. ”

The EEOC has been very active recently in scrutinizing employers’ hiring practices and filing cases where it determines an employer’s hiring practices have had a disparate impact on one or more protected status groups.  Miaskoff’s comments are another reminder that employers should evaluate carefully and strategically whether and how to use data about job applicants found on social media.  Employers not only should have a strategic plan regarding the use or non-use of such data, but also should implement training on this issue for employees participating in the hiring process.  And, given the EEOC’s increasing focus on this issue, employers would be well served to consider keeping records of how they use or do not use social media and similar data as part of their hiring processes.

Videos of the workshop presentations are available at the FTC’s website.