Be careful, the National Labor Relations Board (NLRB) is not the only federal agency interested in the interplay between social media and workplace decisions. On August 24, the Equal Employment Opportunity Commission (EEOC) Training Institute held a workshop where it addressed, among other things, the Commission's interest in social media's impact on the enforcement of federal employment discrimination laws.
How can an employer get tripped up? Consider a case alleging that an employee was terminated – before she was clearly “showing” – on the basis of pregnancy discrimination. The employee typically will need to establish that the decision-maker was aware of her pregnancy when the decision to terminate was made. If the plaintiff can establish she prominently posted her pregnancy on her Twitter or Facebook page – and can establish that the decision-maker had knowledge of such posts (for example, by being her Facebook friend) – the plaintiff will have a much better chance of avoiding summary judgment and getting her case before a jury. How does an employer protect itself from that scenario? A blanket ban on employees “friending” each other on social media networks likely runs afoul of the employees' right to engage in “protected concerted activity” under the National Labor Relations Act, and in any event is impractical and probably bad recruiting and employee relations. Some employers already restrict supervisors from friending subordinates which, if consistently adhered to and enforced, might help in the above scenario. Bottom line: The interplay between social media and workplace issues only becomes increasingly complex. Its inherent newsworthiness also makes it an attractive target for enforcement agencies wanting to show they are aggressively pursuing what they see as their mandate. Accordingly, expect to see the EEOC ramp up enforcement in this context during the coming months.The NLRB, EEOC and Social Media
RELATED ARTICLES
Shut Your Mouth: Policy Prohibiting Bad-Mouthing the Company Ruled Unlawful
August 27, 2020 | Labor Relations, National Labor Relations Board
U.S. Supreme Court to Take Up Independent Contractor Arbitration Case
February 28, 2018 | Employment Lessons, Supreme Court Watch, Currents - Employment Law
Asking: “How much do you currently make?” in 2018?
December 29, 2017 | EEOC, Employment Lessons, Currents - Employment Law
Sticks and Stones: When Texts and Emails Will Hurt You
July 18, 2017 | Employment Discrimination, Currents - Employment Law
Are You Recording This Conversation?
June 5, 2017 | Employment Lessons, Traditional Labor, Currents - Employment Law
Shut Your Mouth: Policy Prohibiting Bad-Mouthing the Company Ruled Unlawful
August 27, 2020 | Labor Relations, National Labor Relations Board
U.S. Supreme Court to Take Up Independent Contractor Arbitration Case
February 28, 2018 | Employment Lessons, Supreme Court Watch, Currents - Employment Law
Asking: “How much do you currently make?” in 2018?
December 29, 2017 | EEOC, Employment Lessons, Currents - Employment Law
Sticks and Stones: When Texts and Emails Will Hurt You
July 18, 2017 | Employment Discrimination, Currents - Employment Law
Are You Recording This Conversation?
June 5, 2017 | Employment Lessons, Traditional Labor, Currents - Employment Law
The World According to Trump: Could the Obama NLRB’s Pro-Union Rulings be Undone?
November 17, 2016 | Traditional Labor, Currents - Employment Law
The World According to Trump: Trump’s Impact on Traditional Labor
November 15, 2016 | Traditional Labor, Currents - Employment Law
Fifth Circuit Triples Down on the Legality of Class Action Waivers in Arbitration Agreements
August 15, 2016 | Employment Discrimination, Currents - Employment Law
NLRB Hits Ceiling in Continual Push to Expand Scope of Protected Concerted Activity
July 5, 2016 | Traditional Labor, Currents - Employment Law
EEOC Critical of NLRB’s Investigation Confidentiality Concerns
June 23, 2016 | EEOC, Currents - Employment Law
Employers Need Not Tolerate Workers Screaming On the Electronic Street Corner
June 6, 2016 | Social Media and Technology, Currents - Employment Law
The Seventh Circuit Rejects Class & Collective Action Waivers In Arbitration Agreements
June 3, 2016 | High Stakes Employment Issues, Currents - Employment Law
The Viral Spiral: How An Employee’s Facebook Post Dragged Her Employer Into A Social Media Controversy
November 24, 2015 | Social Media and Technology, Currents - Employment Law
NLRB Once Again Puts Employers on Notice Regarding Handbook Policies
October 27, 2015 | Employment Lessons, Currents - Employment Law
Employee Fired for Facebook Selfie
October 19, 2015 | Social Media and Technology, Currents - Employment Law
Are Your Employees Religious Enough For The NLRB?
August 31, 2015 | Employment Discrimination, Currents - Employment Law
Challenge to NLRB “Ambush Election Rules” Fails
July 31, 2015 | Traditional Labor, Currents - Employment Law
A Reminder from the NLRB to Scrutinize Your &!^@$) Policies
May 26, 2015 | Social Media and Technology, Currents - Employment Law
Employers Won’t “Like” Ruling Allowing Class Action Notifications via Social Media
May 6, 2015 | Social Media and Technology, Currents - Employment Law
THE SEC JOINS THE NLRB IN ATTACKING EMPLOYEE CONFIDENTIALITY AGREEMENTS
April 17, 2015 | Non-competes and Trade Secrets, Currents - Employment Law
NLRB Shows No Signs of Releasing Its Death Grip on Employer Handbooks
March 26, 2015 | Traditional Labor, Currents - Employment Law
Non-Union Employers Beware – The NLRB May Come Knocking On Your Door
March 20, 2015 | Employment Lessons, Currents - Employment Law
The Year in Social Media: Four Big Developments from 2014
December 29, 2014 | Social Media and Technology, Currents - Employment Law
NLRB “Likes” Employees’ Facebook Argument
September 2, 2014 | Social Media and Technology, Currents - Employment Law
NLRB Declines to Appeal Class Action Waivers to Supreme Court: What Does it Mean for Employers?
July 21, 2014 | Traditional Labor, Currents - Employment Law
Outlier…or NLRB Shift on Social Media Policies?
July 7, 2014 | Social Media and Technology, Currents - Employment Law
Fifth Circuit Denies NLRB’s Rehearing Request on Class Action Waivers; NLRB Likely to Continue Ignoring Fifth (and Other) Circuit Court Rulings
April 21, 2014 | Traditional Labor, Currents - Employment Law
Not April Foolin’: National Labor Relations Board Finds Employer Rule Requiring Positivity and Professionalism Unlawful
April 7, 2014 | Traditional Labor, Currents - Employment Law
Illinois Case Reminds (Again): Document Rights and Responsibilities On Company Social Media Accounts
March 10, 2014 | Social Media and Technology, Currents - Employment Law
How much can a Facebook post cost you? About $80K
February 27, 2014 | Social Media and Technology, Currents - Employment Law
NLRB "Gives Up the Ghost" On Posting Rule Fight
January 9, 2014 | Traditional Labor, Currents - Employment Law
Facebook Background Checking: Shouldn’t Smart Applicants Check Their Privacy Settings?
January 8, 2014 | Social Media and Technology, Currents - Employment Law
Facebook Users Beware: Even Posts You Claim Not to Have Written Can Haunt You
October 29, 2013 | Social Media and Technology, Currents - Employment Law
Rule Against Non-Union Workplace “Disruptions” Can Run Afoul of NLRA
October 28, 2013 | Traditional Labor, Currents - Employment Law
Your Facebook “Like” May Be Constitutionally-Protected Speech
September 27, 2013 | Social Media and Technology, Currents - Employment Law
Employers May Inadvertently Break the Law When They Discipline Employees for Facebook “Wall” Posts
August 30, 2013 | Social Media and Technology, Currents - Employment Law
NLRB Offers Further Clarification Regarding Expression of Employees’ Section 7 Rights on Social Media
May 23, 2013 | Social Media and Technology, Currents - Employment Law
Congress Rejects Password Protection Amendment To CISPA
April 24, 2013 | Social Media and Technology, Currents - Employment Law
What Happens on Facebook Stays on Facebook…Or Else
April 3, 2013 | Social Media and Technology, Currents - Employment Law
8th Circuit Upholds Class Waivers in FLSA Cases
January 9, 2013 | Fair Labor Standards Act, Currents - Employment Law
When Is Facebook Activity "Solicitation?"
November 26, 2012 | Social Media and Technology, Currents - Employment Law
Hand it Over: Federal Judge Orders Plaintiffs in Discrimination Lawsuit to Produce Cell Phones and Facebook Account Passwords
November 21, 2012 | Employment Discrimination, Social Media and Technology, Currents - Employment Law
Even When You Win, You Might Still Lose: NLRB Strikes Back After Employer Prevails In Federal Court
October 10, 2012 | Traditional Labor, Currents - Employment Law
NLRB Social Media Decisions Leave Questions for Employers
October 4, 2012 | Social Media and Technology, Currents - Employment Law
Supreme Court Issues Long-Awaited Decision in Christopher v. SmithKline Beecham Corp.
June 18, 2012 | Traditional Labor, Currents - Employment Law
A Complete Overview of the NLRB’s Memorandum Regarding Social Media Policies in the Workplace
June 4, 2012 | Social Media and Technology, Currents - Employment Law
Entertainers, Facebook Messages and the Work-Product Doctrine?
May 22, 2012 | Social Media and Technology, Currents - Employment Law
RELATED PRACTICE AREAS
Subscribe
Do you want to receive more valuable insights directly in your inbox? Visit our subscription center and let us know what you're interested in learning more about.
View Subscription Center