The EEOC is expected to scrutinize employer restrictions on employees' social media use. At a meeting in December, the EEOC discussed how social media can be used by workers to spread anti-harassment messages and bring complaints to public attention. The EEOC views social media as a modern equivalent to water cooler conversations and may focus on whether employer social media policies could inhibit employees' ability to report harassment or other discrimination. The EEOC suggests employer actions that could obstruct employees' rights to complain about discrimination may constitute an illegal obstruction charge.

1. Breaking New Ground, EEOC to Scrutinize Employer Social Media Policies
Social media issues should already be on employers’ radars, especially in light of a
ruling last year by the National Labor Relations Board that Facebook “likes”
constitute legally protected activity.
Now this year, the Equal Employment Opportunity Commission is joining the fray
and is expected to scrutinize employer restrictions of employees’ social media use.
In December, at a meeting of the EEOC’s Select Task Force on the Study of
Harassment in the Workplace, the Commission discussed how social media can be
used as a positive platform for workers’ rights, such as spreading an anti-
harassment message or bringing complaints to the attention of the public.
The EEOC has also held other meetings addressing how social media platforms
serve as a kind of “modern day water cooler,” affecting the workplace in areas
such as recruitment and hiring, harassment, records retention and litigation.
Experts expect the Commission to focus on employers’ use of social media against
such water cooler activity.
Areas of potential scrutiny include social media activity perceived as restricting
employees’ social media rights in a way that could inhibit their ability to use it for
reporting harassment and other discriminatory behavior.
The Commission has suggested that this could constitute the employer attempting
to or obstruct employees’ rights to complain about discrimination, therefore
opening the door to an “obstruction” charge against the employer.
An employer can’t retaliate against an employee for alleging discrimination and
allowing a charge for “obstructing” employees from discussing a charge with each
other would be breaking new legal ground.
But the law has long protected employees would “oppose” workplace
discrimination.

2. An in recent guidance, the EEOC has stated that an employer telling employees not
to discuss discrimination with co-workers is a “flagrant” violation of Title VII.
The EEOC is now suggesting, like the national labor board, that monitoring social
media could have a chilling effect on employees who want to discuss
discrimination among themselves. .
A report issued in 2012 General Counsel’s office- NLRB, examined seven
employer policies governing the use of social media by employees.
In six cases, the General Counsel’s office found some provisions of the employer’s
social media policy to be lawful and others to be unlawful. In the seventh case, the
entire policy was found to be lawful. Provisions were found to be unlawful when
they interfered with the rights of employees to talk among themselves wages and
working conditions.