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Meeting of March 12, 2014 - Social Media in the Workplace: Examining Implications for Equal Employment Opportunity Law - Transcript


Jacqueline A. Berrien, Chair
Constance S. Barker, Commissioner
Chai R. Feldblum, Commissioner
Victoria A. Lipnic, Commissioner
Jenny R. Yang, Commissioner

P. David Lopez, General Counsel
Peggy Mastroianni, Legal Counsel
Bernadette B. Wilson, Acting Executive Officer

Carol Miaskoff
Acting Associate Legal Counsel
Office of Legal Counsel

Rita Kittle (via VTC)
Senior Trial Attorney
EEOC Denver Field Office

Lynne Bernabei
Bernabei & Wachtel PLLC

Renee Jackson
Nixon Peabody LLP

Jonathan Segal
Duane Morris LLP
Managing Principal
Duane Morris Institute
Testifying on behalf of the Society for Human
Resource Management (SHRM)


Announcement of Notation Votes

Social Media in the Workplace:
Examining Opportunities for Equal Opportunity Employment Law

Opening Statements by the Commission

Victoria Lipnic, Commissioner
Constance Barker, Commissioner
Chai Feldblum, Commissioner
Jenny Yang, Commissioner

Panelist Presentations

Carol Miaskoff, Acting Associate Legal Counsel, Office of Legal Counsel

Rita Kittle, Senior Trial Attorney,
EEOC Denver Field Office (via VTC)

Lynne Bernabei, Partner, Bernabei & Wachtel PLLC

Renee Jackson, Associate, Nixon Peabody LLP

Jonathan Segal, Partner, Duane Morris LLP;
Managing Principal, Duane Morris Institute, Testifying on behalf of the Society for
Human Resource Management (SHRM)

EEOC Commission Responses and Questions

Motion to Adjourn


CHAIR BERRIEN: Good morning everyone. The meeting of the U.S. Equal Employment Opportunity Commission will now be called to order. I'd like to begin by thanking everyone who is in attendance here in Washington and also by greeting those who are streaming or participating in this meeting by video conference.

In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberations and voting. At this time I'm going to ask Bernadette Wilson to announce any notation votes that have taken place since the last Commission meeting.

Ms. Wilson?

MS. WILSON: Good morning, and before I begin, is there anyone in need of sign language interpreter services? Okay, good morning again, Madam Chair, Commissioners, General Counsel, Legal Counsel. I'm Bernadette Wilson from the Executive Secretariat.

And first of all I want to mention that the EEOC will hold a live discussion on Twitter during this meeting using the hashtag #socialEEOC, and we invite the public to join the conversation.

We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting and we ask that you carry on any conversations outside the meeting room, departing and reentering as quietly as possible.

Also, please take this opportunity to turn your cell phones off or to vibrate mode. I would also like to remind the audience that in case of emergency, there are exit doors to the right and left as you exit this room. Additionally, the restrooms are down the hall to the right and left of the elevators.

During the period November 13th, 2013, through March 7th, 2014, the Commission acted on 23 items by notation vote:

Approved Litigation on one (1) case;

Approved Amicus Participation in five (5) cases;

Approved two (2) Federal Sector Decisions;

Approved a Memorandum of Understanding with the Office of Special Counsel;

Approved three (3) Subpoena Determinations;

Approved the following contracts: Technology to Support Intake Information Group (IIG); FY 2014 First Quarter Information Technology (IT) Acquisitions; and an Extension to Operate the Revolving Fund's Online Registration and Payment Collection System;

Approved Release for Public Comment of Proposed Revisions to Management Directive 110;

Approved the Spring 2014 Regulatory Agenda; a Final Rule Adjusting the Penalty for Notice Posting Requirements; a Final Rule Making Technical Corrections to the ADEA Waiver Regulation, an Advance Notice of Proposed Rulemaking Regarding the Federal Sector's Obligation to be a Model Employer of Individuals with Disabilities; and,

Approved Resolutions Honoring Rheta Kasmer; Diana J. Gilpatrick; and Dianna B. Johnston on their retirements.

Madam Chair?

CHAIR BERRIEN: Thank you Ms. Wilson. Today's meeting is entitled Social Media in the Workplace; Examining Implications for Equal Employment Opportunity Law. This is a very important topic with a landscape that changes not just daily but seemingly by the hour and even by the minute.

We thank all of you for joining us in our Washington D.C. Headquarters and by video conference and as Ms. Wilson noted in the prefatory remarks for the first time in EEOC history, our Twitter followers can also join the meeting using the hashtag #socialEEOC.

The Commission has live tweeted and held Twitter discussions before in conjunction with other events, but this is the first time we've done it during a Commission meeting. So many thanks to all of those who are responsible for bringing the Commission into the 21st Century fully. And particularly to our Office of Communications and Legislative Affairs, which has done terrific work in advancing all of our work and our communication about our work.

Given today's topic, we felt it appropriate to begin to incorporate Twitter in our meetings and we look forward to being joined by many Twitter followers in this meeting.

One of the hallmarks of the 21st Century workplace is the ubiquitous presence of technology. In recent years social media has both accelerated and expanded communication with outside audiences for individuals and institutions. A photograph that would once have been confined to the relative handful of people with access to a scrapbook, photo album or yearbook for example, can now be posted or transmitted instantly to countless users across the globe through at least a half a dozen services.

Social media has changed the way in which communities, individuals, families, networks, companies, political movements, government agencies, telecommunication corporations and elected officials organize, communicate and make connections. However, social media and its increased usage also present new questions, issues and concerns for the workplace among other areas of our daily lives.

While many of these questions are complicated, nearly everyone centers around the increasingly blurry line between what is private and what is public; what is relevant and what is outside the workplace. These are lines which are changing and are very different than when many of today's employees, supervisors and business owners were educated, entered the workplace or learned the morays of the professional world.

Every sector of life though has been impacted; commercial, educational, medical, political, governmental, professional and legal. The way we communicate with others and conduct our lives has changed and continues to change because of technology. The EEOC is not exempt from these changes. And Equal Employment Opportunity law is increasingly touched by the advance of social media.

As has been recognized by the American Bar Association, employee advocates in the business community, the use of social media is changing the way that EEO specialists interpret the law and advise their clients on how to adhere to it; how those in the business and employer community protect themselves from liability for unauthorized employee conduct; how employees and job applicants conduct themselves in the workplace and in their job searches, and how the EEOC enforces the law.

Thus this morning under the leadership of Commissioner Victoria Lipnic, who organized today's meeting, we have invited a distinguished panel of guests representing the Plaintiff's Bar, the Management Bar, the Human Resources Community and have also tapped into our own expertise within the Agency to educate the Commission and the public on how the use of Social Media in the workplace is impacting EEO enforcement and implicating EEO laws including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Genetic Information Non-Discrimination Act.

We hope that this public meeting will help Members of the Commission better understand how Social Media is being used in the workplace and how it is impacting recruitment and hiring, the terms and conditions of employment, workplace harassment, records retention and employment litigation. I want to thank all of our witnesses, four of whom are here in Washington and the fifth, Rita Kittle, who will be participating by video conference, for the time that you have invested in preparing for the meeting, for your preparation of such useful testimony for the meeting and for the testimony you will provide orally today and for participating in this meeting and discussion with the Commission today. We are all very grateful for your commitment and for your willingness to assist us in this way.

I look forward to your testimony and am especially looking forward to getting a better understanding of whether and to what extent the EEO related issues that arise in this context are truly new or are simply old issues refreshed by new technology. So I want to thank you in advance and at this time my Colleagues on the Commission will make opening statements as well. Normally we would turn to Commissioner Barker, but she has graciously agreed to yield her position this morning to Commissioner Lipnic as the meeting organizer who may have some additional words of framing and overview to share with all of us. Thank you.

COMMISSIONER LIPNIC: Thank you Madam Chair, good morning everyone. First I want to extend my appreciation to you, Madam Chair and your office for working collaboratively with my staff to arrange this morning's meeting. Actually I think that Joi Chaney and Jim Paretti are the ones who've put most of the work into this and have been most excited about this all along.

So as we will hear from our witnesses this morning, the issues raised by the increased presence of Social Media in all its forms, in our lives and particularly in our workplaces can be nuanced and complex. We have assembled an outstanding panel of practitioners, well-versed in these issues from both within and outside the EEOC. Welcome to all of you.

It is no understatement to say that as a society we are more interconnected and presented more opportunity to communicate and engage with friends, peers, colleagues and even strangers than at any time, other time in our history. I would wager that every person in this room is carrying on his or her person today, a device with more computing and communicating capacity than a room full of machines we might have relied upon to send men to the moon only decades ago.

As with all things, the use of this technology varies person to person. Again in this room I am sure we would find a number of early adopters, those who are the first to master new hardware, software and platforms; a few laggards who may be dragged kicking and screaming into new technology and I have to say that as one of those troglodytes who still opens my front door every morning and picks up a newspaper, I think I am in danger of becoming one of those and then I realized actually the other day that I'd said troglodyte to someone and he said, "oh good SAT word," and now since the SAT words are going by the wayside, it's even worse. So, I guess there'll be an app for the SAT words.

Anyway and then -- yes, there probably is already, right. And of course there are those who almost unconsciously use and adapt to new technologies as they spread through the market. As is often the case, law and policy will often lag behind this technological curve. Indeed this year as we celebrate the 50th anniversary of our landmark Civil Rights Act of 1964, there are other labor laws; our wage and hour scheme, our laws laying out the rights and responsibilities of workers and unions in the workplace that are even older than that; yet we expect and demand our laws when applied to the workplace to apply to a vastly changed society.

As we will hear this morning, this often leads to questions about whether, when and how these laws may be applied and with what result. In some instances, this may be fairly straightforward, longstanding principles and issues simply in new or updated packaging as the Chair has said. Equally likely however, are those instances where technology has moved so far beyond where the law was and is that we really do have to look for entirely new answers.

As policymakers and regulators it is our challenge and I think our responsibility to do all that we can to ensure that our interpretation and our administration of the laws within our charge is as current and fully informed as possible. It is for that reason I first approached the Chair with the idea of holding a hearing examining these issues and why we are here this morning.

And as a final note, I just want to be clear, today's meeting should not suggest that we as an Agency are preparing to issue any regulations or guidance in this area. Today is intended to be a listening session and a chance for each Commissioner to hear what the state of play is with respect to these issues and hopefully to answer any questions that we may have. And I would probably suggest also that even if we did issue something within a week it would be out of date. So, with that said, thank you again to our witnesses and I yield back my time.

CHAIR BERRIEN: Thank you. Thank you Commissioner Lipnic. Commissioner Barker?

COMMISSIONER BARKER: Thank you, new microphones, haven't learned to use them yet. I want to join the Chair in thanking Vickie and her staff and Joi in the Chair's staff for going to all the work that goes into putting these meetings together and really look forward to today's topic. I think it's going to be a really interesting and frankly a fun topic. We don't have a lot of those.

I'm going to try -- I'm going to keep my remarks very brief and try not to repeat what anyone else says. Basically I just have two points. One is I want to admit straight out that while I love new technology, I have a total lack of sympathy for all the people who blast their private lives on Facebook and other social media. And I think we need to not lose sight of expectation of privacy issues. To me, Facebook and other similar social media are like those billboards you see when you go through towns that keep flashing different, you know a different message every 30 seconds, you know all lights, colors, you know, buy this, you know, sell that. It's like our 20-somethings and to some extent our 30-somethings and to some extent 40-somethings and on up have suddenly gotten so in love with themselves that it's kind of like, "Oh look, I'm so cute, Oh no, look, I'm even cuter, oh no, look, even I'm even cuter, cuter." And you know I have friends who have children who have babies and oh my gosh, it's kind of like an every 30 seconds, let's see what junior is doing now and for somehow -- and I don't understand this -- these young mothers have time to write these long blogs with a minute-by-minute accounting of what junior's doing. So, I'm going to start out by saying that I have a total lack of sympathy or empathy for people who choose to blast their private things about themselves on the social media. And I have no interest in really protecting those people. That said, we all know that things hit social media in different ways and it's not always you know a person deciding to post something personal about themselves. Sometimes it's someone else posting personal things about that person.

And I think that the core issue that we all agree on today is that it is absolutely illegal for an employer to use social media as a screening tool to screen out applicants for illegal reasons. You know an employer cannot use the social media to discover that a person has an illness, therefore they don't want to hire them; or their family has an illness, therefore they don't want to hire them; or any of the other areas that Title VII protects.

That said, my only other point is, I think we have to be very careful as an Agency when a new kind of sexy topic comes up like this, I think it's very tempting to try to figure out, oh how can we extend our jurisdiction to cover these issues. And I think we have to be very careful to stay very true to the parameters of Title VII and the other federal employment laws and as much as we may want to protect people in certain circumstances; if they're not protected by Title VII, then we need to be careful not to expand our jurisdiction by even informal guidances to suggest that people in certain circumstances are covered when they truly are not.

Thank you Madam Chair.

CHAIR BERRIEN: Thank you Commissioner Barker.

Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you Madam Chair and thank you, Madam Chair for agreeing to have this meeting and thank you and congratulations to Commissioner Lipnic for pushing to have this and definitely to the staff which of course you all know, I mean that's the work that gets done so thank you to Jim Paretti and Joi Chaney. We're going to hear a fair amount in your testimony about some of the different legal questions that arise from social media. So I just want to use my opening comments to reinforce another aspect of social media that I don't think we'll touch on as much but it's certainly important to the Commission.

I'm sure many of you may have seen that in our Strategic Plan for 2012 to 2016 of our three objectives, our middle objective is outreach and education; to really help enforce the law by ensuring that people who have rights under the law understand those rights and people with responsibilities under the law understand their responsibilities.

So, I think the mic just went out on me maybe. But, so I'm thrilled that we have a hashtag for this event, #socialEEOC. I -- oh, okay I've been informed by my Chief of Staff that I may not live tweet during this Commission meeting, very difficult sitting on my hands but I do hope that if anyone does live tweet with the hashtag I assure you I will retweet it. Others of you who have been here at some meetings know that I've you know, plugged Twitter, including saying follow me @chaifeldblum so if anyone hasn't yet in this audience, right, but the key thing for me in terms of this is that hashtags can create a community of people around an issue for a short period of time but then those are people that we can stay connected to.

So for the first time during the State of the Union we, I and a few other people created a hashtag #soto3pwds and we ended up meeting some hundreds of people that we didn't even know were interested in disability rights. And then last week at the White House, two weeks ago we created a hashtag #pwdream2015. I urge you to go on that to sort of see some of the conversation. Hashtags and Twitter and Facebook and LinkedIn, although I don't use those as much, can create a community of people who care about an issue.

I certainly hope that we will be using that to help educate people about their rights and their responsibilities under the Civil Rights laws. Thank you.

COMMISSIONER FELDBLUM: I yield back my time.. sorry.

CHAIR BERRIEN: I was giving a moment for the mic exchange, okay? Thanks Commissioner Feldblum. Commissioner Yang?

COMMISSIONER YANG: Thank you Chair Berrien and thank you Commissioner Lipnic for pulling together what promises to be a fascinating meeting. I also want to thank everybody for coming here today. I've really enjoyed reading the written testimony and I thank all the witnesses for all the hard work you've put into it.

What fascinated me in thinking about this issue is how fast our workplace is changing; not just the technology and social media but how the generational change in the workforce will impact the workforce to come. I was interested to see the statistics provided by Jonathan Segal in his written testimony that said today, Millennials, those under 30, account for 36 percent of the U.S. workforce. But just over a decade from now in 2025, they will account for 75 percent of the global workplace.

So just as the changing racial and ethnic demographics really impact the work of this Agency, this significant generational change in our workforce has important implications for our work as an enforcement agency.

My kids are only in elementary school but there have already been issues with kids chatting on video online games. And I can see how kids who grow up with this technology have very different expectations. They have signed up for Facebook when they were actually in middle and high school unlike me who signed up in anticipation of my 20th high school reunion. So they have been using these technologies like LinkedIn for their entire careers. And those who have grown up with this technology do have a different perspective. They use it much more actively to find out information, crowd source, get job related information or post details about their personal lives, as Commissioner Barker had talked about. These changing attitudes along with the technology developments are far out-pacing the law. And they do present challenges both for employers and employees to consider.

In private practice I was confronted by a range of discovery issues related to social media and I really wish I had all your written testimony at that time.

I found Rita Kittle's book chapter particularly helpful because as I researched the issues, there was really a dearth of information from the perspective of individual plaintiffs on e-discovery issues that related to social media. So I found that incredibly helpful. And I'm interested in hearing about the ways in which social media can appropriately be used in the discovery process while avoiding overbroad and invasive searches that obtain irrelevant personal information that can be a real deterrent that chills individuals from exercising their protected rights under our statutes.

I'm also aware that employers have many challenging issues to address including potential liability or reputational damage that may flow from employee postings. And I am interested in hearing about how social media policies can be used to put employees on notice of acceptable uses of social media. And I'm also interested in hearing about how to draft those policies to balance these employer concerns while not chilling protected activity which may include postings that relate to opposition to discriminatory practices.

So I really look forward to hearing from you today about some of these issues and the rapidly changing technology environment and the recommendations that you have both for employees and employers alike. Thank you all so much for your testimony today.

CHAIR BERRIEN: Thank you Commissioner Yang. Thank you all Commissioners for your opening remarks. And now we'll turn to our panel. Just a word of housekeeping, there are timing lights in the center of our console. The yellow light will be signaled -- one or two -- one minute before your allotted time comes to an end and the red light will come on when your time comes to an end. So thank you and please be attentive to the lights that will be used during your testimony.

We have your full written testimony. It will become a part of the record. We've asked that you limit your oral statements today and be assured that your full testimony will be a part of the record.

I'd like to introduce our panel beginning with Carol Miaskoff, the Acting Associate Legal Counsel in the EEOC's Office of Legal Counsel. Participating by VTC will be Rita Kittle, a Senior Trial Attorney with EEOC's Denver Field Office. Also in Washington, Lynne Bernabei, Partner at Bernabei & Wachtel, welcome. Here in Washington D.C., Renee Jackson, an Associate at Nixon Peabody LLP in San Francisco, California, welcome. Jonathan Segal representing the Society of Human Resource Management is a Partner at Duane Morris LLP and a Managing Principal at the Duane Morris Institute in Philadelphia, Pennsylvania, welcome.

Welcome to all of you. And we are all very excited about hearing from you and we're very pleased to have such an exceptional panel of experts with us today and we will begin today's meeting with the testimony of Carol Miaskoff who's going to provide context for the discussion, outline relevant legislation and review what EEOC and other agencies have said with respect to the use of social media in the employment context.

Thank you. Ms. Miaskoff.

MS. MIASKOFF: Good morning Madam Chair, distinguished Commissioners. I am Carol Miaskoff, Acting Associate Legal Counsel. This morning I will discuss EEOC's statements pertaining to social media and federal EEO law.

Now my first topic in my written testimony was titled, "What is Social Media?" And given the discussion we've had here, I think I'm going to fast-forward through that and only make two points. One is that it's obviously evolving like the speed of light as I think Commissioner Lipnic said. Indeed starting in January 2014 there's now a social media site called Confide that can allow you to send text messages that automatically self-destruct in a certain amount of time, which was started when someone was asked to give a personnel reference and couldn't reach the individual by phone. So they wanted to text but they wanted it to disappear. So these things are constantly evolving in ways that impact the workplace.

Another point I want to make is simply that I think many people use their online social networks to communicate with a very broad network of people that sort of melds together circles from their personal life, from their family, from their work life, from their house of worship. And we end up on the social media, our personal social media with links to all these different arenas in one place.

And I think that sometimes from the perspective of the workplace, blurs or indeed alters the borders between work and private life and I think that becomes relevant when we talk about some of the cases later on.

From the EEOC's perspective however, there is one basic principal which has already been stated that covered employers are subject to the EEO laws regardless of the media or the technology that they use in the workplace.

Now on the substance of my written testimony I start by talking about state legislation as well as federal legislation and then actions by the NLRB. That is all set out in detail in my written testimony. I want to quickly just go through it and make the point that in 2012, 2013 and now 2014, we have a total of about 30 states that either have or are considering legislation that bars employers from gaining password access or access to private social media sites.

And part of the concerns that drove those pieces of legislation were concerns about employment discrimination, should employers learn about protected information on private social media sites. So there is that link there. There are also two pieces of federal legislation which are pending in committee now and I'd be happy to answer questions about those later. But I want to focus on our laws now.

I think the NLRB is pertinent for two reasons: one, they were the first ones who were out there with, starting to make law and policy on social media in the workplace. And secondly, their decisions, if you read them and again I'd be happy to answer more specific questions later; they really analyze in a granular way how the interactions and statements of the worker -- whether they were sufficiently linked to employee discussions about terms and conditions in the workplace. So they look at the social media statements and they look at what was going on in the workplace and they look for a nexus between them. And I think that's a basic theme that starts to emerge when you look at what they've done and what the EEOC has done.

Like the NLRB, the EEOC has made statements about social media in the last few years; some of them like federal sector appeals decisions analyze specific facts. Others like letters and publications were more general. The most recent statement was made on Monday, two days ago, March 10th, 2014 when the EEOC and the Federal Trade Commission issued two joint publications about background checks, what employers need to know, what job applicants and employees should know.

These publications encompass a variety of background investigations and they encompass the use of social media. As joint publications, these documents include summaries of both Agencies' laws that are pertinent. The FTC portions discuss the Fair Credit Reporting Act which applies when employers use outside companies to do background checks including searches of social media sites. The EEOC portions obviously talk about employment discrimination, for example, not singling out people for background checks or social media checks based on their protected status. The EEOC portion also talks about ADA and GINA issues some of which I'll talk about later.

Our federal sector decisions perhaps go to the heart of the issue and I think some of the themes that emerge there are echoed in some of the private sector case law that some of the other witnesses may discuss. The two OFO decisions I'm going to discuss involve workplace harassment and recruitment. They are procedural which in the federal sector context means that the factual record is not extensively discussed in the decision but we do have enough facts to draw some conclusions.

The first decision is Knowlton v. Department of Transportation, which involves racial harassment. And you'll have to excuse me as I quote the record a bit here. Complainant, who was an air traffic controller, alleged that after making a routine office food run to Chick-fil-A one day, one of his co-workers posted a racist statement about him on Facebook. Complainant alleged that the harasser said, and I quote, "He would make the next food run to a racist restaurant and see if his blank-blank wants to complain. If he does, I will laugh in his face."

Complainant, who did not have a Facebook page, heard about the posting nonetheless fairly promptly from a colleague who did and was connected with this individual. And it was later inferred that the harasser posted it because he was upset about the choice of Chick-fil-A for the lunch run because, "it is allegedly an anti-gay establishment". Complainant also asserted in his complaint that his regular FAA trainer, who keeps people trained on the controller business, who happened to be friendly with the alleged harasser, subsequently reassigned complainant to another trainer under whom complainant "struggled and was 'hounded and mocked on a continual basis.'"

He filed a racial harassment complaint, the Agency dismissed the complaint for failure to state a claim, focusing only on the Facebook posting and saying that that was insufficient to allege a hostile work environment. On appeal the EEOC reversed. The EEOC explained that if all of complainant's allegations were considered together, they are, "reflective of an actionable claim of harassment." The EEOC remanded the case to the Agency to process this complaint. This is a 2012 decision. The cite's in my written materials and I don't have any further information as to where it stands at this point.

In another federal sector appeal, called Reese v. Department of the Interior, the complainant applied to the National Park Service for a park ranger position. Her application was rejected and she filed an EEO complaint alleging discrimination in part based on her age, which was 61 at the time.

The complainant asserted, -- and I think this will ring a bell with everyone -- that the Agency's recruitment of younger people through Facebook and other social media, put her and other older workers at a disadvantage because they use computers less often and less fluently than younger people.

It appears that she used this allegation to make a disparate impact claim under the Age Discrimination in Employment Act and perhaps also to make a disparate treatment claim. The complainant lost in her hearing before the EEOC administrative judge who found no evidence that recruitment through Facebook caused a disparate impact based on age. The EEOC affirmed.

In addition, the EEOC noted that there were no allegations here that the Park Service only recruited through Facebook and social media. It appears that they recruited through a variety of sources. And I think this last fact basically goes to disparate treatment. So the legal theories in this case are a bit fuzzy. But she did make both allegations.

Turning to the experience of EEOC's field offices, they report that they are familiar with fact patterns in which the alleged harasser uses text messages to deliver the harassment. Similarly, they have seen instances in which individuals use social media to report harassment. In some instances they report a subsequent backlash over social media against the individual claiming harassment so that is perhaps a unique social media twist here. And I think these themes may be echoed in some of the again, private sector cases we may hear about.

Finally, EEOC field offices have seen situations in which people allege disparate application of social media policies, traditional disparate treatment. For example, a woman alleged that she was terminated for violating the employer's social media policy when a man who violated the same policy was not terminated. And I'd also like to note when talking about our offices that they regularly do extensive outreach to both employers and typically to young people about social media, social media in the workplace was one of the most popular topics at our technical assistance programs for employers last year. And our folks also make a regular effort to caution young people about social media at our Youth At Work events.

Another important source of EEOC statements about social media is our letters to stakeholders. I'm sorry, well I guess I will stop there.

CHAIR BERRIEN: If there is something beyond your written testimony then perhaps you can take it up in the questions period. Thank you for your testimony.

And now we'll turn to Rita Kittle, who is going to join us by videoconference and will review how social media issues have presented themselves in EEOC litigation, Ms. Kittle? Okay, we can see you but we can't hear you.

MS. KITTLE: Okay, is that better?

CHAIR BERRIEN: That's it, thank you.

MS. KITTLE: Okay. And I don't -- can't see the yellow light so I'm going to try to keep my own time here but if I talk too long you can just shut me down.

Good morning Madam Chair and distinguished Commissioners. Thank you for inviting me to speak this morning. My name is Rita Burns Kittle and I am the Supervisory Trial -- a Supervisory Trial Attorney in the Phoenix District of the EEOC. I've worked in the Denver Field Office since 1999 and my area of emphasis has been systemic litigation.

I was asked to speak this morning because I've dealt with social medial related discovery issues in litigation and I co-authored a paper on discovery of electronically stored information which was submitted to the Commissioners in advance as my written testimony.

By way of background, I was Lead Counsel on our nationwide case against Outback Steakhouse which settled for $19 million in 2009 and I'm proud to say our case changed the way Outback is doing business today. Women have a fair opportunity to seek promotions and are being promoted at a significantly higher rate. I have litigated a number of other systemic cases for the Commission, resulting in total settlements of over $18 million but all those successes were before social media became an area of discovery. Not that we're losing them now but litigating systemic cases for the EEOC in the current environment where discovery of individual witnesses, social media activity is very common, has made our work more difficult. But make no mistake, we've adjusted to this new era.

I will focus my remarks today in the narrower context of discovery which is where we've dealt with this issue in EEOC litigation so far. And I will briefly touch on three areas. First, how productive is it to search social media sources in cases where social media is not part of the alleged discrimination. Second, the challenges in negotiating the parameters of a search for social media sources and third, the major concern I have for the effect on EEOC's systemic litigation.

So first is whether social media is a productive source of discovery and I'll tell you that in my experience, the answer to that is rarely. Social media will obviously be relevant in a harassment case for some of the harassment is happening on Facebook or some other social networking site. It will obviously be relevant in a hiring case if the defendant's hiring decisions are based on social media information. Those are not the cases I've seen.

What I've seen are employment discrimination cases where the social media activity of witnesses is an area of discovery even though social media has nothing to do with the alleged discrimination. Social media usually becomes relevant because sometimes witnesses interact with one another on social media or because witnesses sometimes say things on social media that may appear to be inconsistent with what they are saying in the litigation.

As a result, social media is one of many sources of information to be searched during discovery but it's there alongside far, other far-more productive sources such as personnel files, payroll records, human resource database information, scheduling records, e-mail, sometimes even we have audio/video recordings of the relevant events.

But the vast majority of witnesses, including charging parties and the aggrieved individuals for whom we are seeking relief in our cases, searching their social media activity is about as productive as searching through their letters and cards that they send to family and friends. Or actually more to the point, the Post-It notes that they leave on the refrigerator. They say things like, "I took the dog for a walk at 2:00 PM," or, "this is a good book," or as Commissioner Barker mentioned, "what the new baby junior did five minutes ago." It's mostly very mundane information.

And social media information is often ephemeral. It's constantly changing in ways that are not entirely controlled by the person whose records are being searched. As we learned in one of our cases, when a person is de-friended and blocked on Facebook, the person's posts are removed by Facebook. So for example if a charging party de-friends and blocks the sexual harasser, then all of the harasser's posts are automatically removed from her Facebook page. And if she made posts on his Facebook page, those are deleted as well.

And the same happens if the harasser de-friends and blocks the charging party. The information erased could be beneficial to either party and in those cases we're left with trying to gather the information from Facebook or the social medial provider and I can tell you that has proven to be very problematic and not at all productive. And what is most concerning is that it may be impossible, eventually, because the new trend in the social media technology is toward deleting the records rather than preserving them such as the new application where you can send a photo and it's automatically deleted immediately.

In most cases, employment discrimination will continue to be proved through records in the custody and control of the employer: employee handbooks, written policy documents, termination notices, disciplinary records, personnel files, HR databases; all those kinds of records that we've always relied on to prove discrimination.

In my experience social media discovery is usually sought for purposes of reducing damages. So for example in one of our cases, one of the victims put a post on Facebook saying she was happy not to be working for the company who had just fired her for complaining about sexual harassment. The defendant argued that this post showed she was not upset about being fired and was not entitled to any emotional distress damages.

Another woman posted about her son's death. And the defendant argued this was relevant to show other stressors in her life and of course her son's death was another stressor in her life but that was one easily found without social medial discovery. So on the whole, unless social media is a central aspect of a case which I have not yet seen; discovery in this area is not very useful for finding relevant admissible evidence.

Nevertheless, the scope of relevance in discovery is very broad so for now even if it's not the most productive source, social media is a source in discovery and we're dealing with it in our litigation. The biggest difficulty in managing social media discovery is determining the parameters of the search so as to capture those communications that are arguably relevant and leave behind that huge mass of information that has no bearing on the litigation.

Defining the search parameter however is easier said than done unless there's an agreement with opposing counsel. No matter what search is conducted, the other side will find gaps and exploit those to claim that relevant evidence has been withheld. So there's a substantial investment of time at the beginning of the litigation getting agreement among counsel on defining the parameters of the search. Defendants often take the position that everything anyone has posted online is public and therefore discoverable. In our systemic cases, the defendants typically demand that every aggrieved individual provide user IDs and passwords for every social media account the person has ever accessed.

The apparent plan then is to search through everything in hopes of finding information to potentially impeach the witness or sometimes just to embarrass and humiliate the witness. Fortunately as federal courts have gained a better understanding of social media, they become less likely to order universal production of user IDs and passwords. Courts have recognized that rifling through all of a person's Facebook postings is no different than rifling through all the papers in his basement file cabinet.

The approach of rifling through everything on the theory there might be something useful in there something, somewhere is the classic fishing expedition. It's never been an acceptable approach to discovery and is not acceptable now just because the information is held in electronic form. Once we get past the "we get everything" argument the next battle is defining what is relevant.

Defendants make two arguments to cast as wide a net as possible. The first is that anything which bears on the witness's credibility is relevant to the litigation. Of course that argument applies equally to all witnesses regardless of whether they testify for the plaintiff or the defendant. In our experience, defense attorneys are much more agreeable about search parameters when they know that the same search will apply to the individual's social media activity of all the managers and supervisors who are involved in the case, instead of just being limited to the corporate accounts over which the defendant has control.

So once it's clear that the search of private accounts is happening on both sides of the case; there's generally no interest in searching through activity on sites like dating sites, gaming sites, restaurant and movie reviews and there's just a huge long list of other online activities which are included in social media broadly and they're unlikely to have any evidence relevant to the case.

The second argument defendants make to cast a wide net is that anything which bears on the person's emotional status is relevant to the claim for emotional distress damages. I touched on this before. A defendant may argue that posts reflecting the person's social activities; going to a movie or out to dinner with friends or going to a party are relevant to show that the person was not really very distressed about getting fired from their job.

Or a defendant will argue -- in one of our cases defendant argued that posts about taking the dog to the vet showed an alternate stressor in the person's life. So the challenge for us is to reach an agreement with defense counsel on search parameters which will capture posts that legitimately bear on the person's emotional distress. Generally in negotiating over search parameters we have to agree on three basic aspects: first is excluded area, some of which I mentioned earlier, dating sites, gaming sites, purchasing activity, product reviews, political activities; and then there's an area of online support groups which provide some unique problems in terms of privacy.

The second area we have to agree on is a list of search terms for searching the text. And the third area is criteria for graphics and photos because those don't get searched by search terms. So for example in a sexual harassment case we had against a car dealership, we agreed on categories of photos of graphics. We included things like photos of the workplace, photos of people in the case, photos of cars because these are car salesmen and they're sort of fixated on cars. We did not however, produce a large quantity of fingernail design photos that were posted on the Facebook page of one of our car salesmen victims.

The point here is that negotiating the search parameters can be very time consuming and challenging but it is absolutely essential to do at the very beginning of the case. And then finally, having litigating a number of systemic cases for the EEOC over the years, and because I care passionately about our ability to successfully prosecute systemic cases; my major concern over this penchant for searching social media and text activity is the chilling effect these searches have on participation in our systemic cases.

When people think that participating in our case will mean that all their private communications may be laid bare and subject to search by the employer or former employer who discriminated against them, they are far less willing to participate in our cases. And sometimes the search goes beyond just the person who's participating in the litigation where the defendant wants to search the social media activity and e-mail and private communications of their family and friends, which has an even greater chilling effect.

Worse, when these victims of discrimination are subjected to depositions involving hours of grilling over every Facebook post they've liked or they tagged, or intensely questioned about the death of a family member because a Facebook post mentions the funeral of that person; these victims become very disheartened by the lack of justice in the justice system. In those cases our job as litigators for the EEOC is to tightly cap in the search so as to gather only what is relevant and as best we can to protect the victims of discrimination from being further abused or disadvantaged in the discovery process. And we will do that fiercely.

Thank you for the opportunity to testify and I look forward to your questions and I hope I wasn't too long.

CHAIR BERRIEN: Thank you. I realize we should have given you the yellow light warning but thank you for watching and managing the time from your space as well.

Okay, we're going to turn now to Lynne Bernabei, from Bernabei & Wachtel, thank you.

MS. BERNABEI: Thank you to the Commission for holding this hearing. It is a fascinating topic. I'm going to get into some of the cases and what at least we see as a trend. But I think all of the Commissioners sort of touched on sort of a governing principle we might want to look at which is, there's been a paradigm shift I think about the tension between what is public in our society and what is private. And I think even from what the Commissioners said, I think that you would get different answers from different people in society about what's public and what's private.

And I would probably agree with Commissioner Barker, I would die rather than post personal items on Facebook, but I do not think that the younger generation and even people that are slightly younger than me feel that way. They feel that their postings on social media, in particular Facebook, and some of the others that are with private settings, are private. They're their community and they feel very strongly about the privacy. So I think what we see in these cases is this tension between a society that's not quite at peace about what's private and what's public. And so you get these cases that go either way and you get litigants that are very disturbed by what's going on because of the tension that's not just in our legal cases but that's in society as a whole.

So one topic I wanted to talk about was hiring. As you all know, formal background checks are governed by the Fair Credit Reporting Act. So if an employer either for an applicant or employee does a formal background check, they have to tell the employee, they have to get permission. But what's happening is, employers can perform less formal background checks without getting the employee's permission. So what has been happening and what more and more states are prohibiting is an employer requiring an applicant to give their password, give their access information so they can access private social media.

The case that got a lot of attention in this area was a case in Maryland where a correctional officer in the Department of Public Safety and Correctional Services in Maryland was forced for a recertification exam to give his private access information, his password to get into his social media and he actually watched as a supervisor went through all these private postings and personal information.

Well that eventually led to the ACLU and this correctional officer's supporting legislation which did pass in Maryland prohibiting employers from demanding of applicants or current employees' information, their password and information that would allow them access to private social media. A number of states, I think there are eight or 12 now that have passed similar legislation including California, Michigan, Colorado, New Jersey and I believe Illinois among others.

As Carol mentioned, there has been federal legislation proposed by Representative Eliot Engel of New York. What that would do is it would apply to both employers and educational institutions, and as many of you know, colleges also are demanding now access to potential students' private social media information. And that legislation would prohibit both employers and educational institutions from doing that. The Department of Labor would be the enforcement body for employers if it were to pass. The Department of Labor would be the enforcement body for employers who violated that law.

Where is there room for the EEOC to take action? I believe and I think this would be good for both employees and employers if the EEOC would either require or encourage employers to develop clear policies saying they cannot use social media postings in hiring decisions just like what the law says -- some of these laws say currently. It's too easy for an employer to take into consideration prohibited characteristics such as race, disability, marital status, sexual orientation if all the information is there on social media. There's really no need for them to do that. There's other ways of getting that information if it's job-related, if there is some issue about medical capability to do the job, they're fully able to do that. But to just sort of obtain all this personal information for every job without a job-related characteristic I think is very dangerous and allows people or employers to act on what may be inherent prejudices.

I think the policies may assist employers as well because if a particular hiring decision and particular promotion decision is challenged on the grounds that its discriminatory, they will be able to say I didn't access social media; I didn't know you had a disability; I didn't know your marital status; I didn't know your sexual orientation. So I think it could help both employees and employers in the hiring process.

I think the EEOC also could articulate much as the NLRB is currently doing that an employee's use of social media -- [THEREUPON, the audio cuts out from 58:55 to 59:34 and an unknown female's voice is heard with the following "private communication of their family and friends which hasn't --"]

MS. LYNN BERNABEI: -- eliminating discrimination in the workplace or to support cases of discrimination against the employer are protected activity. In other words if an employee in the workplace and the employers may not like it, but if an employee in the workplace puts on social media, "I'm really glad my co-worker has brought a discrimination case, we need to do something to clean up our workplace and we need to stop discrimination"; that is protected activity just as if he or she made the comment in the workplace. And I think the EEOC would do well to develop policies that make that clear. Because I think many employers don't understand that social media is a form of expression that should be protected in the same way as the comments in the workplace or statements to the EEOC or statements to the internal EEO, in the EEO process are protected.

The other sort of area I wanted to touch upon is employer liability; when are employee -- [THEREUPON, audio cuts out from 1:00:39 - 1:01:13.]

CHAIR BERRIEN: -- from Bernabei- Wachtel, thank you.

MS. BERNABEI: -- media and given that we have this blurring of line between the private social media of an employee and what he or she talks about and what he or she does at work, I think the employer has -- employers have to be cognizant of what their employees do even on their private social media. And the way that the cases have sort of developed is what if you have co-workers -- and usually these cases are pretty egregious, what if you have co-workers that go home and say racist things or make racists remarks about co-workers? It's part of their racially hostile work environment. There's a case out of the Eastern District of Pennsylvania sort of an early case, 2009; it was filed by the Guardian Civic League on behalf of 2,300 African American police officers. And the Guardian alleged that active duty police sergeant had founded and operated a racially offensive Web site, and said that the sergeant posted inflammatory and racist materials on it. So the Guardian and individual African American policemen told their supervisors and told the department you've got to do something about it. The department refused to do anything about it and in fact it was so blatant and sort of -- how do you want to say -- sort of out there that the white police officers who were supportive of this Web site with racist and inflammatory statements that they would actually access it at work, talk about it at work and make fun of the African American employees at work. And the department refused to do anything about that.

The Guardian did file a suit against the Philadelphia Police Department and the information we have is that the case did settle for $152,000 plus certain injunctive relief. And I think that case is sort of a nice example of when employers -- and this was a public employer; but employers have to give some guidance and direction to their employees about what they can or cannot do on their private social media because that may be part of another employee's hostile work environment.

Another case in this area is out of the District of Puerto Rico, 2010, it's Amira-Jabbar v. Travel Services, Inc. and in that case there was an African American employee and there was an employer sanctioned or employer sponsored activity outside of work and there were certain pictures taken at that picnic or some kind of activity. And another employee posted a picture of the plaintiff on the Web site, the plaintiff was African American. And there were certain comments that were then posted about the comment, the person that was pictured and then there was a response by the person that posted it and there were a number of comments that the African American woman whose picture -- have passed similar legislation including California, Michigan, Colorado -- [THEREUPON, audio cuts out from 1:04:23 - 1:05:43]

MS. BERNABEI: -- eventually brought a suit against Travel Services Inc. and she said this was part of my racially hostile work environment. It was a -- even though it was a private posting, even though there were comments and even though she herself participated in those comments, I thought those were racists comments. And the court in that case, while dismissing the case because of lack of full evidence, did accept the postings on this Web site which was pictures from an employer-sanctioned picnic or outing as evidence, potential evidence of a racially hostile work environment.

So I think that just shows that employers, even though they may think well that's the employee's private business; if brought to their attention or if they have knowledge of it, have to be careful to direct employees not to do that. I think in terms of where the EEOC might go with this, I think it would be very good if the EEOC could define the situations for employers when it would be important to tell them when can you discipline an employee for using social media in a way that's offensive to others in the work environment, or racially or sexually hostile work environment for example.

The EEOC could also and I think this would be very again, very helpful to develop guidance on when employees out of work social media activities can be used as discrimination in cases, can be offensive to co-workers, can be seen not as the private viewpoint outside of work but can be used as evidence of a hostile work environment. And I think that would be really good guidance.

I wanted to touch on discovery. I'll just say one point. It is true that the courts are increasingly allowing discovery of private settings of social media, but we're not to the point where that's sort of a, you know, it's not an absolute. What they're doing is they are making distinctions about whether the employer has some ability to show that the private settings would be truly private or relevant. Thank you.

CHAIR BERRIEN: Thank you and now we'll turn to Renee Jackson from Nixon Peabody.

MS. JACKSON: Thank you and good morning. I'd like to thank the Commission for inviting me here today to testify on this topic. I'm certainly honored to appear before you to discuss this. It's a topic I've dedicated a lot of time and effort to over the past few years so I'm happy to be here to discuss with you all and this distinguished panel. When I created this sub-practice a few years ago my aim was to advise employers on how to lawfully use social media in the absence of any laws or guidance specifically on point. So when it became clear to me that social media wasn't going anywhere and that employers could no longer put their head in the sand, I began to think how do we apply these old laws into new spaces. Never once did I think what can employers get away with until the law catches up. You know I think that we're all on the same page here.

My clients range greatly in size, location and industry but nearly all of them are trying to figure out how they can use social media to hire, promote their brand, grow their business without running afoul of various laws and infringing on employee rights so that's the angle that I'm coming from and I think we are all on the same page.

I've counseled clients on how to use social media in the hiring process, the rights that employees have to use social media both during employment and outside of the workplace, whether an employee can be disciplined for a post in social media, whether and how to investigate an issue arising out of social media that impacts the workplace or the company brand and various other issues relating to social media and technology.

Without question, the technologies at issue are moving faster than the law ever could and employers now have a patchwork of old and new federal and state laws to comply with and compliance is not always easy or clear. My written testimony is very thorough outlining the laws that are at issue but today I'm going to focus on the laws and legal concepts that are most relevant to the EEOC's mission and enforcement plan.

So first, Use of social media in the hiring and recruiting process. Employers are increasingly using social media to recruit talent and candidates are increasingly using social media to find and apply for jobs. Employers are using social media in hiring and recruiting to identify and source potential candidates, allow applicants to apply directly through social media, learn more about the candidates who have applied or that they're interviewing, validate a resume versus a professional networking profile and disqualify an applicant based on negative information found.

I advise companies using social media in the hiring process on how to comply with the Fair Credit Reporting Act, the state password laws which have been covered thoroughly by the other panelists so I won't go into them myself and then federal, state and local anti-discrimination laws, which everyone here is well aware, protect individuals from discrimination in hiring based on protected class status. In my experience, and this is all anecdotal, obviously I represent management side, employers know that they can't make hiring decisions based on protected class status no matter where they get the information from. That is not new, the new space does not change that. Anecdotally the employers I work with are using social media in a positive way; to source candidates, post jobs, accept applications for employment, but they're not relying on social medial alone to fill those positions. It would be unwise. They're not making hiring decisions based on low social influence score or lack of a social media presence and they're not asking for user names and passwords in my experience.

I advise employers to be cautious, conservative and consistent when using social media in recruiting and hiring and I'll list for you some of the compliance suggestions that I give to them: use social media as part of a larger recruitment plan which includes traditional and new media, networking, referrals, just add it to the mix. Don't rely on it alone. If you're doing a social media background check, use a third party that is a consumer reporting agency under FICRA. If you're doing it yourself, maybe consider designating one person within your organization to do the search; filter out protected class info and pass that along so you don't even have the chance to use that information. Only review publicly available information; don't ask for passwords and user names; conduct the search at the same time in the hiring process so we will only do this post-offer as opposed to, "well, this person sitting in front of me about to interview, it's his first round, I'll Google him now, but you know he's going to go down the hall to someone else's office and they won't." And so it's inconsistencies that can get employers in trouble and that's how I advise them to not do that. Avoid recruiting solely from social media or limiting applicants to applying only through a social media site or only with their social media profile and again avoid making hiring decisions on low social influence score or lack of a social media presence. So that's hiring.

Use of social media during employment, there are more laws to consider. Employers are definitely using social media to promote their brand, their products, their services, communicate with customers and hire and retain employees. Employees are using social media throughout the day on computers and mobile to stay connected with contacts, catch up on news, take a break from work, even play social games with each other. Some employees use social media on behalf of the employer. Managing the company's social media presence for the employer, many employees like those in sales use social media for business generation. And it's also common for co-workers to be connected with each other in social media.

So the line between personal/professional, work and play is blurred. I would argue it doesn't exist anymore. So and there are a lot of legal issues that also become blurred as a result. I advise companies on how to comply with the National Labor Relations Act which has been touched upon, the password protection laws, which again have been touched upon but those often come up during investigations. I have employers ask me, can we ask for user name and passwords of our current employees to investigate harassment, misconduct, theft, any of that. So that does come up. I don't see it in the hiring but I do see it during employment.

The Family Medical Leave Act has come up a lot and the ADA as well. I'm getting a lot of questions from employers who and oftentimes it's co-workers who report that an employee who is out on leave is posting pictures to Facebook that would indicate that the leave that they're on may not be medically necessary. And so you'll have an employee reporting another employee to the employer, to HR and HR saying wow, yeah, if you have a medical condition that's preventing you from doing work, why is it that you're going skydiving, things like that and that's happening. And so the FMLA, the ADA have been implicated. I do touch upon the FLSA in my practice as well which is you know we won't get into here and then most importantly to this hearing are the state and federal antidiscrimination and harassment laws. The types of issues that have arisen in case law so far regarding discrimination and harassment: whether an employer is required to engage in the interactive process with an employee who communicates about medical conditions in social media; whether an employer proved Faragher-Ellerth defense to vicarious liability through its investigation of an employee's Facebook post regarding her boss's creepy hands; whether the content of a particular post to social media was a legitimate nondiscriminatory reason for termination or pretext for discrimination; and whether the content of or a complaint about a particular post is considered protected conduct for retaliation purposes under Title VII.

These cases make clear that viewing an employee's social media could lead to learning information about protected class status, protected conduct for retaliation purposes or the need for an accommodation. From the perspective of the supervisor, being friends with a subordinate in social media could lead to knowledge under various EEO laws if for example the supervisor sees that one employee is making sexual comments about or to another on Facebook. I'm also concerned about the potential for harassment through new technologies, Confide has been mentioned, Snapchat as well; these allow you to send self-destructing pictures or messages; the pictures have been used for sexting and that you know consensual but I'm worried about those types of things coming into the workplace where lines get blurred and initially you're communicating and then you're conducting witty banter with a co-worker of yours and then all of the sudden it can turn quickly and so those new technologies do concern me a little bit, especially since there is no record of the communication and the laws that we're talking about toady do require you keep records for hiring and various other purposes. And with technologies like that where things auto-destruct, the employer cannot keep a record. It is not possible. So that's an issue that we're seeing.

Again, I'll conclude you know, employers have that patchwork of old and new federal and state during employment these are the types of suggestions I give employers for compliance: Apply the same discrimination harassment accommodation and retaliation concepts to social media. It's a new space. The concepts aren't necessarily different. Do not make adverse employment decisions based on protected class status. Investigate sexual harassment allegations and engage in the interactive process as soon as there is knowledge of harassment or the need for an accommodation.

This one's important, make sure that employees, particularly supervisors and managers understand that their friendships with subordinates in social media may saddle them with additional responsibilities under the law. Insert language encompassing social media into code of conduct and harassment policies. During investigations only review publicly available information or information that has been shared by a third party who had authorized access to the social media profile in question. Again, no user names and passwords.

And in conclusion, it's been stated a bunch today but the technology is outpacing the law. Policies and practices must be constantly revisited and updated accordingly, but on the flipside, many of the concepts that we already know and employers are already familiar with, apply in this new space. That's it, thank you.

CHAIR BERRIEN: Thank you. And finally we'll hear from Jonathan Segal from Duane Morris representing Society for Human Resource Management. Thank you.

MR. SEGAL: Thank you very much. Let me start over, okay? Chair Berrien and distinguished Commissioners Barker, Feldblum, Lipnic and Yang, my name is Jonathan Segal and I appear today on behalf of the Society for Human Resource Management, which as you know, is also known as SHRM. Thank you for the honor to be with you today and we thank you, Commissioner Lipnic and your staff for arranging today's meeting.

I'm a partner at Duane Morris and specialize in employment law in general and equal employment opportunity in particular. I frequently speak, write, blog and tweet about employment law, leadership and issues affecting human resource professionals in the workplace. While I love social media, I assure you Commissioner Barker, I don't tweet or post about my family or my favorite food. In fact, if friends post what they eat, I unfriend them which can be a risky act.

As you may know, SHRM is the world's largest HR membership organization representing over 275,000 members in over 160 countries. It is SHRM's mission to proactively provide our members with educational resources on workplace law, compliance, effective HR practices and strategic workforce issues. The growth of social media has significantly changed the way people communicate at work and at home. In addition to private citizens and private organizations, government entities are increasingly using social media to communicate, including the President, members of Congress and indeed the EEOC. I want to thank you, Commissioner Feldblum, for your tweets which I forward to my clients regularly. I appreciate the transparent outreach and education. As a recovering litigator it helps me help my clients comply.

Social media can be a powerful business tool, particularly in the accomplishment of HR related tasks. Employers are integrating social media in the workplace in interesting and innovative ways. A few examples: social media has proven valuable in promoting workplace flexibility by leveling the communication playing field between in-house and remote employees. Another example, supporting an organization's diversity and inclusion efforts by readily creating virtual communities of interest such as American Airlines Black Atlas Social Networking site designed for people who are interested in travel and discovering African American and black culture.

Social media is also growing in use as a tool for knowledge sharing within organizations for marketing an employers' brand and also for crisis communications. However for the remainder of my testimony I will focus primarily on the use of social media for recruiting and hiring.

SHRM surveyed its members extensively in 2008, 2011 and then again in 2013, on the use of social media for recruitment and selection. In its 2013 study, SHRM discovered that 77 percent of companies indicated that they were using social networking sites to recruit candidates for specific jobs. That compares to 56 percent in 2011 and only 34 percent in 2008. Smart employers want to cast as broad a net as possible and to reach as many potential candidates as possible and are increasingly harnessing social media as part of their recruitment strategy.

Of course not every job seeker uses social media. For some, that may raise a concern. The concern rests on the assumption that an employer who uses social media or relies solely on social media thereby failing to consider otherwise qualified candidates who are not social media users. However, I would never counsel a client to use only social media and they know of no employer who relies solely on social media in its recruitment efforts.

In fact, I believe it is a best practice to diversify recruiting tools in order to reach potential talent and cast again as broad a net as possible. The percentage of recruiters who indicated that social networking Web sites are an efficient way to reach a variety of job levels more than doubled between 2008 and 2013. One of the top reasons for the use of social media as cited by 80 percent of recruiters is to reach passive candidates who otherwise might not apply or be contacted. Another reason, it allows job candidates an easy way to connect with an organization, 57 percent.

Among organizations that use social networking sites for recruiting, the most utilized social networking Web site in 2013 was LinkedIn. I think we all connected with each other. This was followed by 54 percent using Facebook followed closely by Twitter with 39 percent. Indeed there are many LinkedIn groups that are effectively affinity groups that can help employers in their efforts to reach diverse candidates such as the diversity and cross-cultural professional LinkedIn group.

SHRM is currently working with the White House to focus attention on the long-term unemployed. I feel honored to have worked with SHRM on this important project. As part of this initiative SHRM created how-to guides including one for HR on how to make sure you're not overlooking skilled but unemployed talent and one for job seekers on how to market effectively themselves even if they have been long-term unemployed.

One of the recommendations SHRM has made to the long-term unemployed is to network in multiple ways, including on social media. To ignore social media today is like ignoring e-mail 20 years ago. Social media is not cutting edge, it is now mainstream. Employers may use social media not only to recruit but also to screen job applicants. According to a 2013 SHRM survey, far fewer employers report using social media to screen applicants than to recruit them. Social media is used by employers primarily to reach potential candidates and to market themselves and their brands.

Where an employer does use social media to screen, an employer may learn information about a candidate's protected group; for example from the candidate's picture the employer may learn his or her race, approximate age and more and like Renee, I always counsel my clients, they never can consider that information and it's important that that be part of their education.

But the fact that an employer may learn information about a candidate's protected group status, whether it be on a phone call, in an interview or social media, does not mean that the employer will use it. While we do not doubt the existence of illegal discrimination in our society, we believe that it is responsible employers who recognize that illegal discrimination is not only a legal wrong but it is also bad business.

I've heard it said that there are two times in life when a person is perfect, birth and the job interview. Social media is but one way to enhance the background check to determine whether a candidate should be hired. Individuals have posted everything from pictures of themselves wearing little clothing -- I won't be more specific -- to racist rants. In these cases the employer uncovered information it appropriately considered.

But these examples are the exception, not the rule. Contrary to what some may believe, the fact that some employers screen applicants by looking at their social media sites does not mean that the use of social media results in widespread exclusions. According to SHRM research, the organizations that use information from social engines -- search engines or social networking Web sites, relatively few have actually used this information to disqualify candidates. Only 15 percent using online search engines and only 30 percent using social networking sites have used them to disqualify candidates.

So similar to other kinds of background checks we do not believe there is an on/off switch when it comes to use of social media as it relates to hiring. Rather, key questions should be considered, including, when is it done, who is looking at it, who is doing the looking, what is and what is not considered in the decision making process.

Employers have used social media networking sites and online searches to screen candidates are increasingly adopting policies, defining the use of such technique and providing training to ensure compliance with the laws. In 2008, 72 percent of organizations polled had no formal or informal policies regarding the use of these sites for job screening. Today this figure has dropped to 57 percent and another 28 percent thankfully have indicated they intend to adopt a formal policy hopefully with training in the next 12 months, up from 11 percent.

Lynne mentioned state laws. In 12 states employers cannot ask an applicant or employee for his or her social media password. In order of passage, Maryland, Illinois, California, Michigan, Utah, New Mexico, Arkansas, Colorado, Oregon, Washington D.C., Nevada, New Jersey and many other laws pending. In all 50 states, asking for applicants or employees for their password creates a real risk of violating the Federal Historic Communications Act. For this reason, employers should never ask for someone's password any more than they would ask for keys to their home. It is preferable if someone in HR checks public social media sites rather than line management if that's going to be done. The HR professional is much more likely to know whether he or she can consider.

Finally, ordinarily it's better if the social media check is done later rather than earlier in the process. In fact studies indicate this is what is done and this is how we advise clients accordingly. I recognize that a candidate's social media platform may reveal some information employers cannot and should not consider. For example, an individual may post that she is pregnant. At the same time there could be a legitimate information that an employer can and may want to consider; such as an applicant's involvement in helping disabled vets find jobs. As with other background checks, it's not the looking that is the issue; the legal issue is what the employer does or does not do with what it discovers, and as Commissioner Yang noted, and I need not repeat, for the Millennials, those under 30, a large percentage are relying on social media and that percentage will only increase. Because social media engagement in closing is a relatively new territory for both employers and employees, we're constantly refining how these tools should and should not operate in the workplace; cognizant of the laws in general and the Equal Employment Opportunity laws in particular.

Organizations are embracing social media because the return on investment, particularly in finding diverse talent, is getting clearer. Existing workplace laws provide a useful framework for social media. Although the communication methods are new, the legal issues raised are effectively the same. Thank you again, Commissioners for the honor and the invitation to participate in today's meeting. I look forward to answering any questions. Thank you again.

CHAIR BERRIEN: Thank you so much to this terrific panel. And we are going to take a brief break, a five-minute break now and then return and open the floor for questions and comments by the Commission. Thank you. [THEREUPON, a brief recess was taken, WHEREUPON the further proceedings were continued:]

CHAIR BERRIEN: Ms. Wilson? We'll bring the meeting back to order. Before we start, Ms. Wilson has an announcement.

MS. WILSON: Checking to see if there is anyone again who is in need of sign language interpreter services? Okay, Madam Chair?

CHAIR BERRIEN: Thank you. So we will proceed now with a round of questions and answers. We're actually doing two rounds of questions and comments today. The first will be slightly longer than the second. And I am going to open the floor now for questions and we will begin with Commissioner Barker.

COMMISSIONER BARKER: Well again I want to thank all the panelists and all of the written testimony but also the condensed comments you made today were just so helpful.

I really don't have a question, just sort of a comment and that is I was really glad to hear Ms. Jackson's discussion of how she counsels her clients and also Mr. Segal's because you know I think two things we need to keep in mind. Number one is, it's not our job to write or enact legislation, or to decide public policy and while there are some really interesting public policy issues here about what an employer should do, what an employer should not do, what we should control, what we should not control; that's really is I think as Carol touched on, really not our job. We don't have the authority to do that.

We do have the authority to enforce all of the federal employment laws and to the extent that an employer uses social media for discriminatory reasons, you know that is our job. But it's not our job to draft any sort of informal guidance that tells or even suggests to employers that they should not use social media as a screening tool, because as has been pointed out, in fact, employers first of all if that in and of itself is not a violation of any of the federal employment laws.

And secondly, because in fact they can be used for very positive purposes and things that have nothing to do with discrimination laws such as you know there are so many deciding factors that an employer still has the authority to use when they're choosing an employee. They have nothing to do with discrimination and you know businesses still have the right to choose who they think are the best applicants to join their team so long as they're not choosing applicants for discriminatory reasons.

And if an employer wants to make sure that their team of employees, the people they're going to pay, have a certain level of moral conduct when they're in the public; that employer has the right to say this person is posting photographs of him or herself, you know, as Mr. Segal pointed out, scantily clad or intoxicated or whatever, and you know I do not want my business represented by that level of what I consider immoral conduct. There is nothing illegal about that from the standpoint of the federal employment discriminatory laws.

So that's just my comment and thank you again for all the comments that were made and all the insight and it's so helpful to hear all these different viewpoints and to hear how each of you are approaching the issues from different standpoints. Thank you again.

CHAIR BERRIEN: Thank you, Commissioner Barker. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you Madam Chair. Thank you so much for this, the written testimony and the oral testimony have just been really fascinating. And my question is really going to be more about what EEOC can do to help employers educate -- so this is an outreach and education sort of piece -- educate employers to educate their employees that this divide between the personal and the professional is more fluid than people may think, right? Because I think when people post on Facebook they do think that its private to their friends, so if they're complaining about a co-worker, they think it's private but if that thing gets back to the co-worker and then it becomes part of a hostile work environment that then is the blurring of the personal and professional. So in that I want to start by thanking Carol for mentioning the Office of Federal Operations case, the Knowlton v. Federal Aviation Administration case for those who wanted all of our federal sector cases are posted on West Law so the cite for that is 2012 West Law 235 6829. I also want to note that that case like thousands of others that are issued by our Office of Federal Operations, never came to the Commission for analysis and vote and the way you know that is that that decision will have been signed by Carlton Hadden. So that's pursuant to our delegated power to the Office of Federal Operations.

If you see something signed by the Executive Secretariat, Bernadette Wilson now, that means it has come to the Commission for a vote, we have voted and it is also then precedent for all of our private sector work. So for example, if you see a federal sector case that you think can be helpful, I think it is useful bringing it to our attention because it might be that it's important to get a case like that up to the full Commission so we can analyze it and then vote.

So just taking those facts okay, I think one of the other things social media does is it creates almost insular communities that are huge so that a lot of people might know a fact and then a whole lot of other people don't. So for example, just using this -- how many people when they hear the word, the restaurant named Chick-Fil-A automatically think anti-gay restaurant? How many people think that? Okay, how many people hear Chick-Fil-A and think chicken? Raise your hands. Okay a lot of people in this country will not think anti-gay but for I would imagine that most gay people actually do have that immediate association.

And I think I have that association because of stuff that I have read on my Twitter feed and my Facebook and not really anything I can remember from newspaper reports. But what that means is then in a pluralistic society, some people will not have that association and therefore may act in a way that feels hostile to a gay person, but is not meant that way, okay? And so then the gay person might write something on their Facebook that then comes back round. Okay?

So I guess my question is -- oh and so one thing I do want to say is as opposed to guidance, which sure, guidance is a good thing for us to do in various ways, there are other ways in which we speak as a Commission in federal sector cases of one of those methods and something that's useful with federal sector is it's not every single issue. It's a particular issue that we then work through. That is a useful means for having the Commission provide guidance on what we think.

But, in terms of this whole sort of issue of the harassment or things that are on Facebook that can then come back I'm curious about what you think the EEOC can do to help educate employers to educate their employees. So Lynne if you want to start and --

MS. BERNABEI: Well I think one thing is to encourage employers to do training. And you know of course I see problems when employers discriminate so I don't have quite as rosy a view of employers as maybe my co-panelists do. But I think if training programs are good that would be one way to tell -- for employers to tell employees look it, you think this is on your private time but it's not. It could affect the workplace, so be careful at least on your public postings that you do not engage in activity that could be considered discriminatory or part of a hostile work environment. And so I think if there were better training involved, I think that would at least give guidance to employees.

I think the second thing is, that when employers find out about it, they have to take action. I mean most employers do have defenses that we didn't know this was going on, we couldn't do anything. But I think the cases we see is when its brought to the employers' attention and they don't do anything, that's where the problem occurs in terms of legal liability.

So I think if they had training that, you know, tell your employees not to do this, if it could be considered racially, sexually or otherwise discriminatory, but also we're here to listen and if you see this on someone's private social media, tell us because we'll take steps to review it and do something. So I think that those two things packaged in training would be helpful and I actually think employers should like it also because it would potentially help them avoid liability.


MS. JACKSON: I actually agree with you on the training point but there are some things that we don't know how to train on yet. There are unresolved issues that we couldn't do a training on. I mean as you can see from my written and oral testimony I'm a very practical person. I like to give practical advice so the types of questions that are still open as far as I'm concerned are, when does a supervisor have knowledge of her reasonable accommodation or harassment purposes? Is it -- I'm friends with a subordinate on Facebook, they post something but I don't see it, I don't check it. I check it once a month. I have not seen that post. There's no way there can be implied knowledge there. So you know there's the knowledge issue and in the reasonable accommodation context, you know, what is an employer do if they find out through social media that an employee has a medical condition? Are they then obligated right then and there to go forward and start the interactive process? You know there are open questions that we can't train on and I actually get a lot of questions from clients, can we prohibit supervisors from being friends with subordinates on Facebook? Generally I say no, but they need to know what, you know, what liability can attach if they are friends on Facebook.

So there are some unresolved issues that we can't yet train on that I think would be a good space for you to speak on.

COMMISSIONER FELDBLUM: My time is up but if I can get permission for Jonathan and Carol to respond? Good.

MR. SEGAL: Thank you, Commissioner. I agree that we need training of managers so that managers know they can neither engage in harassment nor tolerate it. If they see it here to become aware of it, they need to respond to it. And that managers also receive training that if they see someone engaging in protected activity, that is, opposing what they perceive to be discrimination, harassment or retaliation, they can't take adverse action to the contrary. They need to look into it, see if there's a valid complaint and take corrective action.

I also think it's important that the education extend to the employees because employees sometimes think, well it's private so therefore I can do what I want and we all know how fast what is what they think may be private is not. And I just also wanted to comment that on -- there are some issues that are maybe policy issues or guidance issues. I always recommend that managers don't friend someone on Facebook because there is a lot on Facebook that goes well beyond what's on Twitter or LinkedIn and the like and much of it you're better off not knowing.

You may learn more by looking at their Facebook then you would by opening their medicine chest. I wouldn't recommend the former, definitely wouldn't recommend the latter. So I like to tell managers don't do it because someone could argue it was imputed to you just don't friend people that work for you. That's a social connection as opposed to LinkedIn which is more of a professional connection.

MS. MIASKOFF: I just want to add that I think in terms of the training, it's a really interesting question that Renee raised and that we're just at a point now in society where we're having this general conversation about what's private now, what's not private. And no, they're not answers to probably a majority of these questions yet. But I still think that having training of employers and employees of everyone so that they can realize that you know issues like finding out, you know, through Facebook if someone has a disability that wow, you know, that may raise some questions. Maybe I should go talk to HR about it.

You know we may not be able to prescribe exactly what to do yet but I think spotting the issues for everyone and getting everyone engaged in this figuring this stuff out could be very, very helpful.

CHAIR BERRIEN: Thank you and I don't want Rita Kittle to be out of sight and out of mind. Rita, if you wanted to weigh in on this question or point?

MS. KITTLE: Well I would just add I think training's great but I think you shouldn't assume that communicating to employees has to happen through their employers and I think the Commission has a unique role to go out and talk to young people about the laws that we enforce and the conduct and behavior that is appropriate in the workplace and how some of the things they may be accustomed to doing on social media can cause problems for them as workers in the workforce.

So I just think we need to be more assertive about getting into schools and talking to young people.

CHAIR BERRIEN: Thank you. Okay we'll turn now to Commissioner Yang for any questions, comment or statement. I'm sorry, Commissioner Lipnic. Commissioner Lipnic, sorry.

COMMISSIONER LIPNIC: Thank you Madam Chair. Okay, a couple of questions. So first, I feel like I'm hearing sort of a little bit of a conflict in the testimony and this goes as to really the discovery issue. So on the one hand it seems like from, say what Rita was saying, you know, what's the relevance of all -- most of this is just drivel on all this social media that we would be looking at, you know, the Post-It notes on the refrigerator. So what's the relevance of that and why would we -- why would an employer want to have to look at that until we get into an harassment case, right? And then it's well, wait a minute, let's -- we really want to see what's here. So could each of you sort of address that? I mean it seems maybe not conflict but at least a tension there that I'm struggling with a little bit.

Lynne maybe you could start.

MS. BERNABEI: Well I'll start because I didn't really speak about this. It's in my written testimony. What the courts generally have said and you know they may be veering off into more of a look into social media but what they've said so far by and large is that if the employer has seen something on a public social media, on the things that are not subject to the privacy settings, that makes them think that what's under the privacy settings is relevant, then they can get to it. But most courts don't just allow rummaging around.

Now I know the EEOC has had issues in terms of preservation which is another issue. But, I think in general the courts are saying you've got to give me a reason to go into those private social media postings. You can't just say I want to rummage through everything.

And so I think there's sort of a balancing they're doing, like if you see something on someone's public Facebook postings that makes you think there's something else there that's relevant, then you show me what it is. And I mean most of the cases at least the ones that are reported say you have to -- the employer has to show some relevancy or some reason to think there's relevant information. It can't just be a fishing expedition. I think where the judges are less tolerant and people get in trouble and they say turn over everything are when there's been a preservation issue or some at least allegation whether it's true or not that something's been destroyed or something's been made inaccessible or something's been erased or made unavailable for discovery. I think that's where courts get sort of skittish and say look you've destroyed evidence or there's at least an allegation. I want you to turn over everything. So I think there's sort of a -- there's a balancing act and I think as long as the information is preserved, courts have made the employer make a particular showing to get to that information.

MS. JACKSON: Sure, so I'd say that it is becoming common in discovery to request social media narrowly. Actually I should have ended my sentence there. It is becoming common to request social media during discovery. Different attorneys have different ways of drafting the discovery request. Some ask for everything and some ask for very pointed things. I fall into the latter category of asking for very pointed things, whether it's something that might go to damages. I have not had a harassment case via social media so I can't speak to that but I do have a case now and I'll change the facts a little bit but an employee who told a supervisor that I am not going to be at work tomorrow because I am going to the parade for the local sports team who just won the World Series and the supervisor said no, we actually need you tomorrow, you can't go, you have to come in. And so that is at the very heart of the case and so we asked for the social media to determine whether he went because he, you know, now is saying that actually no, I was sick that day, and I didn't go.

And so it is the most important piece of evidence in the case because in theory if you go to an event like that you're communicating with friends, posting pictures, things like that and it is relevant and so we have asked for a very pointed things like that and just for a certain period of time so not everything he's ever posted to social media but very, very pointed request. So it is becoming more common.

MR. SEGAL: Thank you, Commissioner Lipnic. I feel the same tension on the issue. I don't think it's an on -- should I start over? I -- thank you, Commissioner Lipnic. I see the same tension. I don't see it as an on/off switch. I accept as follows. I think employers need to think when they develop their litigation hulls to make sure as a matter of routine they think expansively about what kind of social media could be covered and cover it broader than potentially what is discoverable. I don't see there being a downside ever in preserving broadly. You can always argue relevance later. I'm not sure always that employees know they have this same preservation obligation and I think it would be helpful perhaps in the education and outreach if the preservation obligations were explained in terms of the mutuality. And I have the same view as my colleague that with discovery we tend to try to focus only on what would be targeted and I've had the exact same issue, the employee claiming I'm too sick to come to work but then posting about how much money they won in the casino. That seems to me in that case that posting is a little relevant and by a little I mean a lot.

COMMISSIONER LIPNIC: And I wanted to give Rita a chance to comment on this too.

MS. KITTLE: Well I think it's problematic. I think in cases where social media is not at the heart of the case, it tends to be very collateral kinds of information. And most of the time we spend preserving it and searching it and producing it, is time that's not particularly productive.

I think employers in our cases, in our systemic cases in particular, they're anxious to get social media discovery. They always ask for it. They ask for it very broadly. And usually their argument or their theory for why it's relevant has to do with the victim's emotional distress damage. That the stuff you post on Facebook tells people something about your emotional wellbeing and so the argument we hear from defendants is that here are these people who you say are so emotionally damaged by getting fired from their jobs and here they are on Facebook going to parties and they seem to be perfectly fine to us.

That's the biggest way into that sort of discovery and we haven't really found a way to say that they can't get that. We think it does bear on emotional distress damages and sometimes there's something on the social media that really makes a difference in the case. But it's like finding a needle in a haystack generally except maybe in a case I haven't seen yet where the social media really is the center of the case.

COMMISSIONER LIPNIC: I see my time has expired. I had one quick follow-up question, can I -- or should I save it for the next round?

CHAIR BERRIEN: Why don't we hold it for the next round and if there is some -- we may end up with a little extra time at the end.


CHAIR BERRIEN: Thank you. Okay we'll turn to Commissioner Yang.

COMMISSIONER YANG: Okay. Thank you all for your testimony. I really thought that was valuable. I'd like to pick up some more on this issue we've been talking about is where do you draw the line between what is public and what is private? I thought it was interesting that in the hiring context there seems to be broad consensus that employers should not ask for passwords. They should only rely on publicly available information.

Mr. Segal made an important point that employers should only look at what's public and not ask for passwords, just like they wouldn't ask for the keys to someone's home or look at a medicine cabinet. And I think that's an apt analogy. Ms. Jackson also stated that she advises employers to only rely on public information and not ask for social media passwords. Ms. Kittle used a similar analogy in the context of requests for social media passwords in discovery that it was similar to rifling through a basement file cabinet. So at the heart of these statements seems to be a presumption that there is some privacy interest in social media accounts. And I'm trying to understand is what is the difference between the hiring context and litigation? Obviously an individual by filing litigation or participating in EEOC action has put certain facts in issue but simply by exercising your protected rights under our statutes doesn't seem to me that you're waiving all your privacy rights in your social interactions.

So I understand that in the hiring context there are also additional reasons why you might not want to ask for social media, finding out protected information you don't want to know. But what I'm interested in understanding in the discovery context what really is the difference between searching someone's home or their file cabinets and asking for passwords that broadly ask for all your social media? I've certainly seen those general requests in my practice and I have always wondered why isn't it sufficient that an individual responding to discovery requests provides the information so if you've ever posted something that's responsive to a discovery request you can certainly provide that information. You can testify about it in your deposition. You can provide that information in response to interrogatories. So why is it necessary for employers to do invasive searches in that context?

I know Ms. Kittle raised some very important points about thinking about your search terms in advance and I can see why that's important where there's a broad body of electronically stored information. But where there isn't and many of the clients I represented, they didn't have that many postings and they could actually remember they'd ever talked to another class member in a class action about the case or otherwise talked about the discrimination they were complaining about on social media.

So I would be interested in your thoughts on some of those issues. And I'm happy to start with Ms. Bernabei.

MS. BERNABEI: I think it's very much like at least in my experience in litigation it's very much like very broad request for other types of information that would otherwise be considered private, like everybody's phone -- someone's phone records for two years. I mean how that could be potentially relevant to most cases, I don't see. Same thing with requests for all the texts people do on their telephone. That's a general request.

And everybody -- we had a recent case, they wanted this plaintiff's bank records for two years on some sort of crazy idea he lent a witness money. So there's all these sort of fishing expeditions in all kinds of other records so I just see it as sort of an extension of that. That it's something that's potentially embarrassing, something somebody won't want to produce and so you get these very, very broad requests even though it's not tailored to the issues in the case.

So I think it's just another area of potential discovery.

COMMISSIONER YANG: And I guess just to follow up on that there does seem to be some thinking that it is more public, right? That because you've posted it, it's a little bit different than perhaps searching your home, right or your file cabinet to find responsive information and I'm wondering if you've seen courts or other sort of try to balance that? Like do you actually look at the social media account? Do you have 1,000 friends versus 20 close family members or you know are some of -- you know have you ever rejected a friend request? You know and are courts looking at some of those parameters and analyzing the issue?

MR. SEGAL: I just wanted to mention that I think it's new form of communication but the same rules on reasonableness, not a fishing expedition being targeted and if I can just add I think it needs to be reasonable and not targeted on both sides. While I don't think an employer should ask for irrelevant information about a complainant, I don't think a complainant should ask for irrelevant information about every manager. Managers are people too. And they have the same right to have information kept private if irrelevant as does the complainant.

MS. JACKSON: I would just add that the cases right now are still all over the map on that so some courts do look at the number of friends that you have and kind of factor that into the request in public versus private. I think New York has really taken the lead on a lot of these discovery issues. But they are still all over the map so there's no real answer to that.

But for me, like I said before, we do pretty narrow discovery requests and to us, social media is very similar to an e-mail. And that it can, an e-mail is discoverable, it's relevant, it can become public very quickly. I could e-mail you and then you could send it to CNN and then all of a sudden my e-mail has become public. And the same is true with social media in that I post something to my 400 friends and one of them takes a screenshot of it. One of them prints it out and gives it to HR which is a lot of what I'm seeing.

And so things that you think are private can very quickly become public and I think that is the issue that we're seeing that the line isn't clear. And you're right a lot of people do think that their postings are private and they don't give a lot of thought to the fact that one of my friends can go and take this and it's on the evening news. And so that I think is what's a little different about e-mail because you don't tend to send an e-mail to 300 people but you do post to 300, 1,000 people so it's developing and it's very interesting space.

MS. BERNABEI: The one area where there's been something specific to social media is the courts have looked at the contracts with the service providers. And they have said if the service provider warns a user of social media that their postings are not private then it's more easily available in discovery. If there are contracts that say no it's private absent a subpoena, then there's more protection afforded to it.

COMMISSIONER YANG: Right, I did see that in some of the testimony and it struck me that although there's that language you know in fine print you also have privacy settings that everybody sees so you are sort of operating under the assumption that you have some control over the privacy of it, which I think is interesting.

I see that I'm out of time, thank you.

CHAIR BERRIEN: Thank you. I would like to go back to something I referenced in my opening which is that I'm trying to make sure that I appreciate what practices may be -- that are arising from the use of social media in the workplace that are truly new and which are really just extensions of old problems but involving new media. And I believe Mr. Segal in his testimony actually did make a statement about that if there's anything more you'd like to add, I welcome you to do that.

But I am interested in what the panel thinks about whether we are really looking at new issues or whether we're simply looking at really application, longstanding application or considerations under the existing EEO laws and social media is just a different vehicle for those issues coming to light.

MR. SEGAL: I appreciate your referencing the issue. I believe, Commissioner, that there are some very creative uses such as for crisis communication, some that may be less, might not call it crisis but reaching people when there's snow and we've had a little bit of that on the east coast this season. But it's also I think become sort of the modern conference room. People get together and they chat and they chat sometimes on the Facebook and I think it can be a great way for employers to provide information to employees on a real-time basis. I think it's also important that employers always keep in mind not everyone will be comfortable with or have access to it, so you need to step back and ask yourself, I have this vehicle by which I want to provide information such as my policies. Some employees may not be able because of disability. Some employees may choose not to. Some employees may not have access.

So it should be one of many ways that information is imparted, one of many ways where individuals can share with each other and connect. Thank you.

MS. BERNABEI: There's only one comment I would make is that the -- you know I see the most significant way in which it's changing -- there's a new application or it's changing how we look at discrimination law is that the private postings have become part of the workplace or may potentially become part of the workplace, may become part of a cause of action for a plaintiff.

So you know if someone inside their own home said racist things about their co-worker, said sexist things, said any -- made any kind of what we would consider in the workplace inappropriate comments, they could be introduced barring certain exceptions in a lawsuit. However, if you post on social media on your private e-mail those may become part of a co-worker's hostile work environment.

So that's one way in which I think the world has changed with social media.

CHAIR BERRIEN: And for that purpose does it matter whether you're talking about a manager, supervisor or an employee?

MS. BERNABEI: The cases haven't really come down on that. What they've come down on is, is, did the employer know about it. Certainly I think if given the opportunity, the courts would say if it's a manager it's much more serious. But the cases, at least the ones I've reviewed say that if the employer is put on notice and does nothing, that's where the problem occurs.

CHAIR BERRIEN: Thank you. Ms. Miaskoff?

MS. MIASKOFF: Thank you. I would add, I mean I think there are obviously areas where it's changing and where it's not. One of the areas where it's clearly not changing is like disparate application of social media policy. There's absolutely no difference.

But I think one of the -- obviously I think the privacy, the permeability, the changing nature of privacy really impacts the way the EEO laws apply or certainly are litigated and also probably apply for workplace conditions for harassment for decisions that happen during employment.

And one other, I'll just sort of add my two cents really. In terms of the nature of social media and I think we all observed this here today, earlier in the meeting, I mean we were relaxing and we were having a lot of fun and we were laughing about some of the examples and folks were saying well my kid does this or I saw this. And I think the level of informality in social media prompts more open and relaxed communication between co-workers and some of the -- a lot of literature I've read it said you know in a lot of ways that can be great, you know for team building, you know within the workplace et cetera. But I think it has a downside in that some of those filters that we may have in public about ooh, I don't say this in public, I only say it in private to my husband at home; those filters come down a bit and people find themselves blurting stuff that they kind of at some level know they shouldn't but they do.

And I think that is really -- that is going to perhaps change the kind of situations in which we see harassment come up for example. Perhaps until we adjust to it, I don't know.

MS. JACKSON: I would just add, you know, we've talked about the knowledge issue being thorny, I think that's one of the new issues. The self-destructing apps that I talked about during my testimony and the recordkeeping requirements associated with that. And for me the new questions I'm getting relate to the internal investigations. So I'm getting questions about oftentimes what happens, which I referenced in my testimony is that an employee will come to HR and say so and so co-worker posted this and the this could be anything; harassment, misconduct, something about a leave issue, theft, anything that is workplace related. And then my clients will ask me, well I have this printout, can I ask for more?

I'm not friends with that person on social media, I, the HR person, but can I ask that employee to go look and see if there are more relevant postings that might be relevant to this internal investigation? That one's thorny. I don't know that there's a clear answer to that so there are new issues that are coming up because it is a new space and to your point, a lot of it is applying the old frameworks into this new space; not a lot has changed but there are definitely new issues.

CHAIR BERRIEN: Thank you. I want to make sure we get Rita Kittle in as well. Rita, did you have anything to add?

MS. KITTLE: Well I agree with what the people have said before that I think the framework is there and we are still functioning within that framework and EFI discovery, what I always say is that the electronic information is a matter of where the information is stored and how it's stored and just because it's stored in the computer rather than in the file cabinet, doesn't mean you get it all. That you still have to follow the same rules on making particularized requests, but I do think the shift in what -- where the privacy lines are drawn and the fact that people have different views about that. Some think that because you've posted on Facebook it's public and to the world and I think younger people tend to think what they post on Facebook, they don't view it that way.

So I think there's a shifting paradigm about what is private and then there's the implication someone talked about in response to the last series of questions was whatever you send to maybe just one person can become so public so fast through so many other people which even though that one e-mail communication in many ways is no different than the letter you used to send; the ability to make it public and publish it more broadly is just much more readily available and it happens much quicker. So there's that whole time issue in there and how quickly things become -- are published much more broadly than you ever anticipate.

CHAIR BERRIEN: Thank you. Okay, we need to move to our second round of questions and I know that some of our witnesses have time constraints.

MS. BERNABEI: I'm going to excuse myself. Thank you for allowing me to appear. This was very interesting, thank you.

CHAIR BERRIEN: And we thank you. If there are follow-up issues or questions we may be able to find a way to get them to you.

MS. BERNABEI: Okay thank you.

CHAIR BERRIEN: Thank you for being here. Let us turn now to Commissioner Barker.

COMMISSIONER BARKER: Yeah, I think one of the sort of frustrations about this format is that we're not able to sort of engage into a roundtable discussion, but I think Commissioner Yang, you brought up some really interesting discovery questions that I'd like to follow-up from the standpoint that, you made the point you know why is it in discovery that a plaintiff is not allowed to just produce, you know, printouts of e-mails as opposed to, you know, I want access to your -- all your e-mail or I want access to all your Facebook page.

And you know I guess little out of our realm here because what we're talking about is interesting question but it kind of comes down to a judicial determination of, is this discovery request reasonably calculated to lead to admissible evidence.

And I guess I sort of think of like Facebook and other social media as if a plaintiff is carrying, has a big box and in that big box he or she has every photograph of him or herself that has ever been taken and maybe every letter. And you as a defense attorney say I want all the contents of that box. Well it may be that there are only 10 photographs in the box and the court says not unreasonably broad, hand over the box. Or it may be that the court says there are 50,000 photographs and you're going to have to narrow the scope or I'm going to appoint someone to go through your 50,000 photos and pull out the ones where, that relate to your particular question that is reasonably calculated to lead to admissible but it's kind of like to me, social media has created this new sort of format where it's like everybody who participates is carrying around a box of their private life. You know, whereas before, you would never as an attorney say I want to go into that person's house and look for every photograph of that person. Now that they have created this box that makes a convenient vehicle for discovery requests that you may or may not be allowed to enter or you may be allowed to enter only within narrow restrictions. But it has created, just like you pointed out this whole new issue because everybody who participates has their own box. So, just my comments. Thank you all again, you know, your comments were just really helpful.

CHAIR BERRIEN: Thanks, Commissioner Barker. Commissioner Feldblum?

COMMISSIONER FELDBLUM: I'd like to yield my time to Commissioner Lipnic for the last question of the last round and then whatever you have for this one.

COMMISSIONER LIPNIC: Thank you, so kind and thoughtful of you. Well actually some of what my follow-up question was has been already addressed but so just very quickly when you have encountered complainants or plaintiffs in these cases and they are asked to produce information, is it shocking to them that some things may not be private despite the privacy settings as Jenny is saying? That's what I -- you know unless you're under the age of 23 maybe, who thinks that this is not private?

MS. JACKSON: We get a lot of objections. We do, we still do.

MR. SEGAL: Ditto.

COMMISSIONER FELDBLUM: But you just said who thinks they're not private?

COMMISSIONER LIPNIC: Or who thinks it is private, sorry, yes.

MS. JACKSON: Plaintiffs. The plaintiffs do still believe they have privacy rights in their social media. So we do get a lot of objections. And it does turn into a bit of a battle to see if we can get any relevant information.


MR. SEGAL: And there is a bit of an irony. People wouldn't say it but they would put it in e-mail. If they don't want to put it in an e-mail, they put it in social media.


MR. SEGAL: So I do see sometimes employees and sometimes managers to be balanced who think there's privacy and there's not and I think an important part of training of managers is also to remind them that what they say and do in their social media life is discoverable as well.

COMMISSIONER LIPNIC: Well so let me ask this and this goes to part of what Carol was saying, some of this, you know strikes me as it's the everyone is the police on everyone else they're working with. And I had a conversation last night with a woman who is a residence advisor at a college and she was telling me how she has this ongoing discussion with the people who are the resident advisors to not be Facebook policing everyone who's living in the dorm. But all the RAs want to do that and it sounds like I'm hearing that. So I guess what I'm wondering is, if, let's say in an employer setting, in a workplace setting, it seems like there is more willingness to go to the HR person and say I -- look what I found on Facebook about Mary, whereas if Mary had just made this casual comment, would that person have gone to the HR person? And what is the sort of qualitative difference that people are more willing to be the police on their co-workers than something they might have just considered a casual statement before?

MS. JACKSON: I think in the example that you give, the difference is, you know, the comment was made to one other person. Whereas you know an employee sees another employee post something on Facebook and that goes to however many friends you have.

COMMISSIONER LIPNIC: Well what if it was made to more than one person? What if it was in the context where, you know, their co-workers and they're in a group setting and they make this comment and it's potentially offensive but everybody just brushes it off whereas now it's ah-ha, I have it on Facebook?

MS. JACKSON: But I think an analogy is more, I'm giving a presentation and there are 400 people in the room. And I make an off-color remark to all 400 of those people. I bet you at least one of those might go say something to HR. Maybe not in a meeting with 10 people and there's no magic number. But I mean I think there are differences, absolutely.

COMMISSIONER LIPNIC: I'll come to you, Carol.

Go ahead, Jonathan.

MR. SEGAL: Yeah, I do see -- and I'm not exactly sure why more people complain about Facebook than they have in other areas. All I can think of is that it's not going to be a he said/she said, she said/he said, she said/she said, he said/he said. It's there so it makes it easier in terms of showing what happened.

But in the interest of education and consistent with the EEOC's commitment to education outreach, I just wanted to raise one tangential law that relates to all of this. Not always does the employee come forward and say look at this Facebook posting. Sometimes they say you won't believe what I saw on Facebook. And then the manager says to the employee, well give it to me. Well the Stored Communications Act, not something that most of us wake up and think about every day, will protect any posting if there's any privacy configuration. And there's an exception to getting that information if it is, the access to the communication was authorized. But it's not authorized if it's coerced or provided under pressure.

So one of the things that HR needs to be trained about is, on the one hand, if someone comes to you and says, there's harassment, then the law says you must and they should respond. But then the Stored Communication Act says to managers, be careful how you ask, because if you ask too directly, you may be engaging in criminal conduct. So it's a very difficult issue for employers, which goes again to the importance of training. And while EEOC is the core obviously of what we're talking about today, other laws get pulled in that we need to think about.


MS. MIASKOFF: Those are all great, really great points. And I think by analogy I tend to agree with Renee and her thing about the 400 people in the room. That said, I think this also goes to another sort of core change perhaps in social interactions.

And just as I said before that social media may be causing us to relax our levels of formality in our more globally than we used to, I think also communication through Facebook is impacting interpersonal communication. Perhaps people talk more over text and writing over text, over Facebook and as we know when you write something down as opposed to talk in person to something about it, the written word takes on more weight, less flexibility and you know it's more absolute I guess.

And I think that's perhaps why people, one of the contributing factors why people may tend to take these Facebook postings more seriously in some contexts, not in all, than they would an off-handed remark to some friends at lunch say.

COMMISSIONER LIPNIC: And one other question that I had and this is particularly for Ms. Jackson and Mr. Segal, you both talked about employers not just using social media as a recruiting tool but as an actual application process. So could you give us an example of that?

MS. JACKSON: Sure, I'll take LinkedIn for example because everyone here is hopefully familiar with that. If you are applying for a job on LinkedIn there are several different ways you can apply for a job. One posting may have a link that says apply on company Web site. And so you click on the link and it takes you to the company Web site and you go through the process there. Another link allows you to apply through LinkedIn and you can attach your social profile along with your resume and you can choose whether you want to attach your social -- by social profile I mean your LinkedIn profile, to -- and so you submit your resume, you attach your social profile and however it gets back to the company it gets back to the company. And then there's an option where it's just apply with your social profile. And it's obviously very posting specific, whatever that job is I don't know if that job is also listed somewhere else and you can actually apply through the Web site but LinkedIn does have this function that apply with your social profile and that's the only option because the company has set it that way.

And I know if you apply for a job at Facebook you attach your Facebook profile. I have no idea what they see, they Facebook see from your personal Facebook page when you're applying for a job at Facebook. But you have to log into Facebook in order to apply. So there are things like that that are happening. I think being that narrow is it's still rare. But certainly I could see it going further in that direction and that space.

MR. SEGAL: I would agree and I think the example of applying only by using your Facebook profile is the exception and not the rule. I only know of one company that does that. You happen to have mentioned the company.

I would say I do see a lot of, in the interest of expanding the applicant pool because every employer if they're smart wants to hire the best and the brightest and you do that by reaching out into diverse communities, trying to find various and diverse ways to attract talent and LinkedIn provides a lot of opportunities in that area.

We do also see sometimes HR professionals just posting and saying I'm hiring and then saying apply online. Again this is a training issue, always reminding them that they should have the appropriate EEO and/or affirmative action tag line and that also when it comes to preservation, that's an advertisement for applicants. So in a way what I look at it as social media really is nothing new although it's very different in some respects or it feels it. But you could take the life of an employee or the life of employment actions and see all the areas where social media intersects and then figure out how does it apply in the area of hiring. It includes the tag line, it includes the retention, et cetera.

COMMISSIONER LIPNIC: Darn, I had one more question. No -- I do but it's okay.

CHAIR BERRIEN: Do you really?

COMMISSIONER LIPNIC: I do but it's okay. Well my -- so my -- just to follow-up on your last point --

MR. SEGAL: Sure.

COMMISSIONER LIPNIC: So, a couple of you had mentioned, you know the employer's social media policy. What is the employer's social media policy, what is the content of that?

MR. SEGAL: I think it depends. There are some employers who you can't have a panel of lawyers without someone saying --

COMMISSIONER LIPNIC: I was going to say, it depends, right.

MR. SEGAL: -- it depends. We've gone a long time. Some employers have elected not to have a policy. Some employers have gone lean. Some have gone more robust. But in my experience what most employers try to do is send some, establish some general ground rules and one of them is defining what social media is. Everything from Twitter, we haven't talked about Tumbler and Instagram and things that were developed while we were here today.

Second, that individuals should know that just because they treat it as private, it doesn't mean that it is necessarily private. That can be educational and I always like using the example; if you post a discriminatory harassing or retaliatory tweet, et cetera, about a co-worker or colleague with whom you do business, the company has the right to take corrective action, to address it in your harassment policy and your social media policy.

There are limits on what you can say on confidentiality but if carefully written, you don't want your employees posting on social media, medical information about employees because there could be an ADA, GINA and other issues there that when they speak, if they're speaking as individuals, they should be speaking on their own. So if someone has a view of a particular political individual, they shouldn't be speaking on behalf of the organization.

And then another law comes into play, the FTC, that says if you're speaking on behalf of the organization, you need to say that you are so there is transparency that you don't have someone saying these are incredible products. Ever since I've used them, my life is wonderful. But then they're the salesperson of that product.

So those are some of the kinds of issues. One of the more difficult issues can be disparagement clauses on the one hand and I appreciate the Commission's acknowledgement of the balance that there is. There's a reputational risk. At the same time there can be a concern about not wanting to chill protected activity. Some clients are hitting it head on. Some are saying we're not going to address it. We'll look at it on a case-by-case as it arise. Some have followed what is arguably the advice given by the NLRB, implicitly in the Costco decision which is rather than saying disparagement but list sort of the host of horribles. You can't engage in defamatory, disparaging, obscene, threatening, rotten, you know things and with the hope that in that host of horribles that a reasonable person would know it doesn't cover protected activity.

So I see a wide range on that issue.

CHAIR BERRIEN: Before we close out, I do want to make sure that we're not forgetting about Rita, and if Rita had anything to add before we turn to Commissioner Yang.

MS. KITTLE: I just wanted to go back to a topic that was addressed before which has to do with people being surprised that there are these comments being not private. And I would say in my experience with our charging parties and class members, they are surprised at how much of their private life becomes scrutinized in litigation. Now they're astonished when they have to produce their medical records. And in the balance they're way more concerned about production of their private OB/GYN records for example than they are their Facebook postings.

But overall, they are surprised and shocked at how much of their personal lives get scrutinized in the litigation process. That's the reality of litigation and we try to coax them through that. We try to protect their privacy as much as we are able and advocate for them as much as we are able.

And the other thing I just want to say that in my experience it is no longer the case that a judge will order a person to produce user IDs and passwords. That is really a fishing expedition and so the notion that we have this information and it's in this box instead of in the file cabinet where it used to be, that you get the whole box. The courts are not doing that. I think there was some of that that happened early on when nobody quite understood what this was all about. But we don't see that anymore, at least not with plaintiff advocates that argue vigorously against that.


Commissioner Yang?

COMMISSIONER YANG: Thank you. I wanted to pick up on a point Mr. Segal had just touched on relating to non-disparagement clauses and talking more broadly about the scope of the retaliation protections and the statutes that we enforce. I know with social media policies, non-disparagement clauses, confidentiality, proprietary policies and even pay secrecy policies; these can raise numerous issues when you have employees posting on social media accounts that employers may believe are in violation of one of those kinds of policies.

I thought it was interesting that Ms. Jackson's testimony mentioned a case against Orkin where the plaintiff posted on Facebook that she needed a good EEOC lawyer and she had disagreements with her management about promotion and was then fired a week later. So there are -- and the court recognized that there were retaliation protections over such communication. The NLRB has also done some interesting work in decisions recognizing that confidentiality and proprietary policies should be narrowly tailored.

I've seen law firms issue best practices prompted by some of those NLRB decisions that advise that confidentiality provisions should not prohibit discussion of wages and other terms and conditions of employment unless you can demonstrate that that is job-related as a business, you have a legitimate business justification.

So I think the same tension arises with pay secrecy policies. The EEOC has made addressing wage and equalities on gender a priority and there are platforms like that enable workers to share information about pay anonymously if they wish by arming workers with information about what other people are paid so they can negotiate for fair compensation.

And in fact in 2012, the White House Equal Pay Enforcement Task Force which the EEOC participates in, announced the winners of an equal pay app challenge which involved software developers to create apps that provide access to pay data, organized by gender, race and ethnicity that could help inform pay negotiations.

But at the same time in the majority of employers I've seen surveys that say the majority of employers prohibit employers from discussing pay. And so I'm interested in your thoughts on how employers can ensure they're complying with the laws that we enforce in terms of retaliation while also having some of these policies and how they balance some of those tensions.

MS. JACKSON: Sure, I'll go first regarding confidentiality and preventing employees from discussing pay, those do show up in a lot of social media policies. The NLRB has been clear that you have to define what is confidential so I'll say to my clients, give me a list of everything you think is confidential and nine times out of 10 they'll put in their personnel information or information about pay and to be honest I take that out, because you can't prevent employees from discussing those things. Sometimes my employers need to be reminded of that because they do especially, you know they want to keep salary information private and so you know we do tend to take that out of any handbook policy that says that.

So, from my viewpoint it's a chance to teach them that they can't prevent employees from doing that. So we try to be particularly mindful of that.

MR. SEGAL: I'll just add that number one is the drafting of the policies. I didn't mention it earlier but the importance of referencing the existence of harassment, confidentiality, et cetera to social media and vice versa but being very careful in the drafting of those policies and that's much easier to say in 10 seconds than it is to explain.

But what I do find is that what is the line between protected and unprotected activity is something with which judges struggle, with which we all struggle. Therefore I don't want managers struggling with it. So to me a best practice is to say to a manager, if you see or hear employees talking about something that, for example, wages or they post something that you're concerned about, don't take any adverse action. Contact HR. Let HR, often with legal counsel, give you advice. I have had cases where employees have said you won't believe a manager reporting to HR what I just saw and HR said thank you for letting me know, now I need to investigate.

So again, part of training, I like to think for managers there are three roles: A, what you don't do, don't post something that violates EEO. B, what do you do, make sure that you help enforce the company's policies and then C, what are some of the things that you neither refrain from doing or affirmatively do but simply report to HR. In my view when there is a posting of concern, whether it be disparagement, defamatory or the like, my counsel is, don't as a manager go alone. Bring it to HR, let HR guide you. If appropriate, corrective action, it may require investigation, it may require nothing, it may require corrective action but don't make a decision by yourself.

COMMISSIONER YANG: I also wanted to make sure Ms. Kittle had a chance to respond. I know I'm out of time but I didn't get to get to her in my earlier question either if that's okay.

MS. KITTLE: Well I don't really have anything to add to that. I would like a new world where pay isn't secret anymore because I think that's the only way women will ever really get pay equity but that really is a new world.


MR. SEGAL: There's a great new hashtag #banbossy. You may want to take a look at that. It's a wonderful way that in Twitter as Commissioner Feldblum mentioned, sometimes good things can happen. #banbossy is a connection between Lean-In and the Girl Scouts and the whole purpose of it is to make clear that when a man leads, it leads and when a woman leads it should be leading, not bossy and many of us are hashtagging that, including it and sending it.

So I think social media can do a lot of good beyond simply avoiding legal wrong but making workplaces better places for all.


CHAIR BERRIEN: So, one issue that I don't think we really heard a lot about today -- we heard a lot about the things that a person can post, share, reveal or say about themselves, but we didn't really focus that much on things that other people say about the person or reveal or post about the other person.

And one of the things about social media is an individual can, as far as they are concerned, opt out completely of something like Facebook but that doesn't stop anyone else from, you know, posting something where they're present or pictured or portrayed.

So to what extent have either courts or any other sources of law addressed this issue of the third party role in perhaps publishing or providing information about a job applicant or an employee?

MS. MIASKOFF: That's an issue that I think the Office of Federal Operations started thinking about in the Knowlton case. The race harassment case because the complainant there did not have a Facebook account and found out about this racist post only because someone else in the office was a friend.

You know I think that's an important issue but again I think that may be one of those instances where we sort of take away the walls of social media versus other communication and just say how did the person, you know how did that get out? Who found out about it? Who started acting on it? Social media or conversation in the office or otherwise, as long as it's related to the workplace, it's pertinent.

CHAIR BERRIEN: And Ms. Jackson, I think it was when you were testifying, you mentioned background checking firms and the possible involvement of the background checking firm in screening or reviewing social media.


CHAIR BERRIEN: Could you speak a little more about that involvement of a third party to conduct the actual search or review of social media and what parameters are provided in that instance. And are they the same as for a direct search by an employer?

MS. JACKSON: Sure, so social media background checks, there are companies who do provide that as a service. It tends to be an add-on to the traditional background check where you can check a box and say I also would like to do a social media search of applicant in addition to criminal history and everything that is asked for in a traditional background check.

I can speak to one social media background checking company that is a client of mine and I've worked with them on making sure that they're following the Fair Credit Reporting act and the antidiscrimination laws so the applicant gets notice that the background check is going to be done, the social media background check is going to be done, gets a copy of the report, the company -- the social media company redacts out any protected class information so that the employer never sees that in the report. And I've worked with them to make sure that they're doing that so that the employer never sees it. They can't even think about that in the decision.

So what the employer ends up getting is a redacted version of a report that has things that you can consider in the hiring process that are not protected. And this company in particular you know does the notice period that's required by FICRA, the fairness back and forth, you know, negative information has been found and you will, you know it let's the applicant know that there's something in the report that will possibly impact their employment.

So I find that it's being used later on in the process in that you know either at the time of offer or you know we're down to two people, this is a very high profile position, let's make sure that we have and know everything that's out there about this individual on the Internet generally, not just social media. So if we make this big hire, the next day we won't have a PR issue because 10 years ago this person said X, Y and Z, you know, and it's available publicly on the Internet somehow.

CHAIR BERRIEN: Do the same standards apply for -- the same standards that you shared earlier about access to the password?

MS. JACKSON: Yes, passwords and user names are not requested. It's only publicly available information on the Internet, no passwords, no user names, there's no need for that.


Mr. Segal?

MR. SEGAL: Thank you Commissioner. I would just add that I do a lot of work in the area of background checks and in my experience I don't have statistics, just anecdotal, very few clients are electing to include social media in their background checks.

I see social media being used more as screening, more as trying to attract candidates than screening but where a client would ask that, the advice I give is to tell the background check company, we just want to know what's on the individual's social media site, we don't want to know what other people may have said about the individual. I think it's very dangerous to say just because someone said it, it's true. I mean I've seen on social media sites someone say something nice about me. So I take it, you know, I think it's kind of dangerous to allow that so I would always instruct the background checking company; if a client were to ask for it, limit your search to the employee's social media platforms. Do not look at what other people may say, because what other people may say, A, is often irrelevant, B, may be untrue and C, may include information that the employer cannot and should not consider.

CHAIR BERRIEN: Okay. And Carol, Ms. Miaskoff and Ms. Kittle, did you have anything to add on that point?

MS. MIASKOFF: No, I don't.


MS. KITTLE: Neither do I.


HAIR BERRIEN: Okay. Thank you. Thank you both.

So I want to thank -- we've come to the end of our meeting time. I want to thank all of our panelists for the discussion. I do want to ask if any of my Colleagues would like to make any closing remark or comment? Yes? Okay, so we'll start with you, Commissioner Barker.

COMMISSIONER BARKER: The only comment I would make is it occurs to me that as there has been discussion I think Mr. Segal you maybe have talked about it more than anybody else about all the -- and Carol too, I'm sorry, Ms. Miaskoff -- about all the various state -- a lot of states that are developing laws that control employer access.

It occurs to me that five years from now if we were to have this same meeting it would be a very different situation because I think so many of these issues are going to be decided by federal legislation and not just, you know, states with different and conflicting laws. But I suspect there will be federal legislation that will answer a lot of these issues for us. That's all. Thank you again.


Commissioner Feldblum?

COMMISSIONER FELDBLUM: Mostly I just want to thank you Madam Chair for having this meeting and Commissioner Lipnic and her staff for working on it. I want to reaffirm that I think that we've heard a number of important issues that we as an agency should care about.

Commissioner Yang, your comments and Rita Kittle, the comments about the fear that people will start not wanting to come forward and bring cases because their private life will be opened, that's a huge thing we should care about as an agency.

The fact that people might be willing to say things because it's sort of more informal and they're just tweeting and they had two glasses of wine and then they tweeted and it used to be two glasses of wine was just you know among a few friends. That in a pluralistic society, we need to make sure that people don't feel harassed.

So there are a number of issues that I really do hope we approach. I just want to say in a closing that I'm a big believer in pay it forward. I just feel like almost every fun, interesting, good thing I've done in my life it's because I was trying to help someone else and then they ended up getting me into something that I then appreciated.

And it was the same thing with Twitter. There was a friend who had been unemployed for a year and a half about three years ago it was and she needed to create some other profile for herself other than unemployed. And so she was showing me that and I was helping her on that and then I thought oh, well the EEOC -- I had been on the EEOC maybe six, eight months, we are doing so much good stuff! I want people to know about it and that's how I started and that's how I have -- I follow HR people. I follow management and plaintiff lawyers and I never hear about junior, you know? I just get links to articles and really interesting things.

I will also say that I think it was January 2013 I had been named for another term or I was going to be named, there was going to be a vetting and my Chief of Staff, Sharon Masling said to me, why don't you just like not tweet for like the next like four or five months or whatever, and I just like looked at her like she told me I couldn't breathe. And so she was like, never mind, okay, then she went off and discussed with someone that she knows I respect a lot and then she came back and she said, so what this person said for me to tell you is, every tweet is a choice. And that was it, because, you know -- and for me every tweet is both a choice and a government record, you know? But I had then, there was very often I do not retweet something even though you say retweets are not endorsements, I often don't but I will often actually send it to this particular friend. So literally the next day I send her an e-mail of the -- I said I didn't retweet this and then I signed at the bottom, "because every tweet is a choice."

CHAIR BERRIEN: Thank you, Commissioner Lipnic?

COMMISSIONER LIPNIC: I just want to thank the witnesses for your great testimony and this has been very enlightening and I'm going to go back and unfriend everyone that I was friends with so far--

CHAIR BERRIEN: Commissioner Yang?

COMMISSIONER YANG: Well thank you all so much for your very helpful testimony. I have struggled with a number of these issues for years so it's exciting for me to actually get to talk to some of you who have really worked in this area for years.

I wanted to just mention that we've had a very good conversation here that's delving into this issue, where do you draw the line between public and private? And I think that's a very important conversation for us to continue to have and to hopefully eventually there will be some more common understanding about the criteria that you might use in assessing some of those judgments so that we can have an understanding that both employers and employees can operate under.

I agree that there is a substantive difference between, you know, choosing to post something on a blog or to tweet and an opportunity that anybody can join right? So you're intentionally making a communication that anyone in the public has access to, versus a social media posting where you can choose or LinkedIn, on Facebook, whether to accept somebody's friend request. So it is a closed community and you have a password, right? And there are certain protections that I think people understand that come along with that. So I think those are important issues for us to keep talking about.

I agree with Ms. Jackson's statement that I think all of us are working toward a common goal. To understand how employers can best comply with our laws and how employees can understand their rights under our laws as social media evolves.

So I really appreciate everybody's thoughts in bringing those different perspectives to us because it is so valuable as we think about what role we might be able to play and just in closing, as Commissioner Feldblum has pointed out, we do have a strong concern about practices that may deter individuals from accessing the legal system. It is one of our national enforcement priorities and our strategic enforcement plan, so where there may be trends developing where employees may feel deterred from exercising their rights because of overbroad or invasive discovery requests, I think that is an area that is important for us to understand how it's operating.

So I thank you all for sharing some of that information with us today. I found it extremely valuable and thank you to Commissioner Lipnic and the Chair and their staff for putting together an extraordinary meeting.

CHAIR BERRIEN: I share Commissioner Yang's sentiment that one of the things that is very valuable to us as a Commission is when we do have opportunities to identify concerns to be really ahead of the curve as issues are emerging.

Perhaps not taking immediate action or responding immediately in the form of some formal guidance. However, one of the things that was critical in developing this meeting was, we did recognize as I believe Jonathan Segal said, that in some ways on this subject we're not in fact ahead of a curve. We are in fact racing to catch up to what is already proliferating as a practice and proliferating as a part of many people in the workplace's life.

So, I appreciate what all of our panelists have done to help to both identify issues that we ought to be aware of and conscious of as we go forward in enforcing the laws and in informing the public in all parts of the public about how to comply with the laws and how we will enforce those laws. So I appreciate all of your contributions to that. We have -- several Colleagues have rightly acknowledged the tremendous role that not only Commissioner Lipnic but also her staff, particularly Jim Paretti, also Donald McIntosh and my Special Assistant, Joi Chaney have played in bringing this meeting together. But I do also want to acknowledge some other people in the agency who particularly perhaps because this is a novel area in question and we are still sort of developing expertise on some of these questions came forward to assist with developing the meeting and particularly I'd like to thank Ed Loughlin, Leslie Annexstein from the Office of General Counsel, Davis Kim in the Office of Legal Counsel who also played a role in getting us to this meeting today.

Thanks very much to all of you and before we close I will just remind all whether you are on Twitter, live or otherwise that the Commission will hold the meeting record open for 15 days and we invite members of the public to submit written comments on any issues or matters discussed at this meeting. Those comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street NE, Washington D.C. 20507 or e-mailed to Commission meeting comments is all one word in the e-mail address.

All comments will be made available to members of the Commission and to Commission staff working on the matters discussed at the meeting. In addition, comments may be disclosed to the public and by providing comments and response to the solicitation, you are consenting to their use and consideration by the Commission and to their public dissemination.

Accordingly, apropos. Accordingly, please do not include any information in submitted comments that you would not want made public such as your home address, telephone number, et cetera. Also note that when comments are submitted by e-mail the sender's e-mail address automatically appears on the message so I suppose we have a little experience in grappling with this public/private line.

With that, is there a motion to adjourn?


CHAIR BERRIEN: Second? Is there a second? All in favor? [THEREUPON, unanimous "aye's" were heard.]

CHAIR BERRIEN: Opposed? Thank you. We're adjourned. [WHEREUPON, at approximately 12:34 P.M., the EEOC Commission Meeting was adjourned.]