The Genetic Information Non discrimination Act (GINA) went into effect on 11/21 and set the stage for federal policy on the use of social networking sites like Facebook, Linked-in and MySpace in employment decisions. Among other things, GINA prohibits employers from deliberately acquiring genetic information relating to their employees and applicants.
The Equal Employment Opportunity Commission (EEOC) is charged with issuing the implementing regulations that will provide teeth to the GINA Act. While the Act became effective on 11/21, the regulations remain under consideration and could be issued any day. The EEOC has solicited comments on whether an employer violates the Act by viewing an employee’s or applicant’s personal website or social networking site. Some commentators are looking for a bright line rule removing the possibility that employers could stumble across prohibited genetic information like a history of Cancer. The comments are lining up about 50:50 in favor of and against employers being able to view sites like Facebook, MySpace and Linked-in to gather information about employees.
On the employer side, the Small Business Association and U.S. Chamber of Commerce, among others, are saying that publically available information contained in social networking sites should be available to employers without running afoul of the law.
Other commentators, including the ACLU and FDIC, advocate that access and use of this information on these sites should be prohibited.
The time for comments has closed and the EEOC is expected to vote any day on the implementation regulations consistent with the 11/21 effective date of the GINA Act. There are a number of possibilities:
• The EEOC could effectively prohibit employers from viewing social networking sites because an employer would not be able to filter the information viewed on a social networking site to ensure the employer only accesses permissible material.
• The EEOC could condone the practice provided the employer does not use the information to make otherwise unlawful employment decisions, such as refusing to hire a candidate on the basis of his or her race.
• The EEOC could add “intent” requirements which would further define when the law has been broken depending on how the information acquired by employers is utilized.
What’s significant here is that this is the first time a federal body, the EEOC, will take a position about employers using social networking sites in employment decisions. So, for employers out there who like to check Facebook, Linked-in and MySpace to read musings or other posts by current or prospective employees to see if there are any red flags, that tool could be eliminated by the EEOC.
If the EEOC does restrict employers’ use of social media in employment decisions, failure to comply with GINA would be enforced by the employee filing a complaint with the EEOC. This is a necessary pre-cursor to the filing of a lawsuit that could result in compensatory and punitive damages, attorney fees and injunctive relief including back pay or reinstatement in the case of a termination.
