Social Media, HR and the EEOC: What You Need to Know

The recent EEOC hearings on social media in the workplace have the HR industry buzzing. Over the next few weeks, we’ll be sharing our analysis of the testimonies from these hearings and things you should take into consideration for social media recruiting. You can read the first post in this series here.

The EEOC knows social media is impacting the workplace. But does anyone know what “social media” really means and the rules surrounding how to and (how not to) do it?

In an attempt to shed some light on this rapidly changing area of HR, the EEOC held a public meeting on this matter in March 2014. Several expert panelists shared their thoughts, and you can find a link to the full information here.

Below are some of the key takeaways and social media issues every company should consider.

Social Media Impacts HR in Several Ways

As Attorney Jonathan Segal wisely noted, “Social media is no longer cutting edge; it is now mainstream.” And it impacts everything.

But as social media relates to the day-to-day operations of HR, there are two primary areas of impact: the use of social media in recruiting/pre-employment and the use of social media during employment. Our focus is within the first group—the use of social media in recruiting and when making hiring decisions.

The Use of Social Media for Recruiting Is Increasing

The trends indicate that soon, just about every company will be using social media to find talent. Attorney Segal, who appeared on behalf of the Society for Human Resource Management (SHRM), cited results from ongoing SHRM surveys of its members that focused on the use of social networking sites for recruiting.

The results, and the trend, are in line with what one would expect in 2014. The use of social media in the recruiting process is increasing rapidly.

• In 2008, 34 percent of companies indicated they were using social networking sites to recruit


• In 2011, the number increased to 56 percent


• In 2013, the number increased to 77 percent

Key Issues with Social Media Recruiting

Clearly, social media is exploding. And more and more of us in HR are using it to recruit. While it is a prominent issue within HR, it is still unclear as to what you can and cannot do with candidate information acquired through social media.

To help you determine where your HR organization stands in social media and recruiting, we’ve addressed some common questions you may want to consider:

What, exactly, is social media? Everyone hears the phrase “social media” and “social networking,” but there is no single, concrete definition. In fact, we wrote a post highlighting just how unclear and expansive various definitions of social media are. To be safe, you could simply assume the entire Internet qualifies as social media based on various definitions.

Can I ask an applicant for her username and password to social media sites? You shouldn’t. This is one of many HR topics with rules that differentiate by state. But the trend in this area is clear.

In panelist Attorney Carol Miaskoff’s testimony in 2012, four states enacted legislation to prohibit employers from requesting or requiring an employee or an applicant to disclose user names and passwords to personal social media accounts. In 2013, nine more states enacted similar laws. And as of the date of the EEOC hearing, she noted 26 additional states are either considering new legislation or amendments to existing legislation on the subject. Additionally, there is currently federal legislation making its way through the system on this matter. In short, the trend is clear—don’t ask candidates or employees for social media usernames and passwords.

Should I use social media in my recruiting process? Judging by the survey results, you probably already are. And if you aren’t, you likely will be. Make sure you have a policy in place and educate your employees about how you can, and should, use social media for recruiting.

What Your Company Can Do to Keep Up with Social Media Recruiting

Social media recruiting is rapidly changing, and with the increasing creation and adoption of new sites and applications, it will continue to change. The law simply won’t be able to keep up. But your company can.

Establish some intelligent, commonsense guidelines and processes regarding the use of social media in your recruiting. Currently, too many companies don’t have a policy in place. The 2013 SHRM survey found 57 percent of companies do not have a formal or informal policy in place with regards to screening candidates via social networking sites. In reality, we suspect that number is even higher. And not having guidelines or policies in place leads to uncertainty, which leads to problems.

So get ahead of this issue. Be proactive. Establish some rules. And remember, as Attorney Segal stated, looking at social media is not the legal issue at hand. The issue at hand “is what the employer does, or does not, do with what it discovers.”

While social media recruiting presents a new opportunity for you to expand your applicant pool, but there are several reasons employers should use caution. If you’re thinking about using social media to screen job candidates, read this first!

We’ve shared these tips to help educate you on social media employment screenings and considerations for your business—this information should not be construed as legal advice. But if your company chooses to screen applicants on social media or want to explore the topic even further, consult with an attorney for advice related to this screening tactic.

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