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Volume XII, Number 225

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The NLRB, EEOC and Social Media

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.

© 2022 BARNES & THORNBURG LLPNational Law Review, Volume II, Number 248
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About this Author

Barnes & Thornburg’s Labor and Employment Law Department is one of the fastest-growing labor groups in the nation. Two qualities set us apart: Our passion for what we do, and the pride we take in helping clients achieve their business goals. To succeed in the competitive global marketplace, our clients must not only meet but exceed their customers’ expectations. We share this objective, offering superior service, innovative ideas and an understanding of the challenges our clients face.

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