AZ Policy Wonk

The Equal Employment Opportunity Commission is about to tread into uncharted territory: regulating what employers can purposefully view on social networking sites.

It’s become routine for employers to use search engines such as Google to learn more about job applicants. Those searches often take hiring managers to personal Web pages such as those on Facebook and MySpace, which have become hubs for postings that are both personal and professional. It’s also common for supervisors and their employees to become Facebook “friends” or to share information on LinkedIn.

Soon, however, the federal government may choose to regulate how employers can use social networking sites to access genetic information about job candidates and employees already on the payroll.

It all started in 2008 when Congress passed the Genetic Information Nondiscrimination Act (GINA) in an effort to ban workplace discrimination based on the genetic information of employees and job candidates. But that act of Congress left myriad questions that are now up to the EEOC to answer.
It’s relatively common for Congress to write well-meaning but vague laws and leave open a wide range of interpretation. But this one is really fouled up.

There are way too many loopholes to discuss all at once, so I’m going to focus on the most unique aspect of GINA: the part about regulating social networking sites.

The EEOC will have to decide whether employers can use social networking sites deliberately to access job applicants’ genetic information, such as medical history, and then use that information against them when making decisions on hiring, promotions, etc.

The EEOC issued a draft set of instructions in May and danced timidly around the social networking aspect of GINA enforcement. The commission asked for public comment and was expected to clarify the scope of GINA in October, but it has yet to provide final guidance on the part of the act that would dictate what information sources would be off limits to employers.

Among the special-interest groups that submitted comments to the EEOC were the U.S. Chamber of Commerce and the American Civil Liberties Union. Business advocates generally oppose wide interpretation of GINA that would create liability for employers, while the ACLU was among those that urged the EEOC to give broad privacy protections to employees and job seekers.

The sections that differentiate between intentional and unintentional acquisition of genetic information is where it gets really hazy. It’s so difficult to define that the EEOC has provided several examples of legitimate ways employers could obtain genetic information, as well as several that could open them up to lawsuits.

Even though the Americans with Disabilities Act allows an employer to require a medical examination of all employees to whom it has offered a particular job, for example, to determine whether they have heart disease that would affect their ability to perform a physically demanding job, GINA would prohibit inquiries about family medical history of heart disease as part of such an examination.

On the other hand, Congress carved out an exception to address what it called the “water-cooler problem” in which an employer unwittingly receives otherwise prohibited genetic information in the form of family medical history through casual conversations with an employee or by overhearing conversations among co-workers.

Also, an employer would not violate GINA if it learned, for example, that an employee had the breast cancer gene by reading a newspaper article profiling several women living with the knowledge that they have the gene. The statute identifies newspapers, magazines, periodicals, and books as potential sources of genetic information. The proposed regulation adds to that list information obtained through electronic media, such as the Internet, television, and movies. So, presumably, information in all of those places would be considered publicly available, and employers would be exempt from lawsuits if that information was used in making workplace decisions.

Yet – here’s the kicker – the EEOC didn’t outline how to handle information obtained from personal Web sites or social networking sites. In fact, it asked for public comment on whether those sources should be included in the list of excepted sources or the list of prohibited material.
To clarify: The EEOC hadn’t found a clear way to regulate the acquisition of genetic information on Web sites such as Facebook or MySpace. It leaves open the question about whether those should be considered sources of public or private information.

While GINA pertains only to obtaining and using genetic information, any regulation of what employers can and can’t view on personal Web pages would create a whole new standard when it comes to online interaction between employers and employees.

Based on my experience using social networking sites, they clearly are used by people with divergent views on what sort of information to make available about themselves: Some people post material that’s purely professional in nature and intended for the general public; others, however, post very personal information, including stuff that could be used to determine family medical history.

The problem is and always has been this: No matter how you think the information should be used, once the information is out there, it’s out there for just about anybody. Nobody should expect it to remain confidential or that it will be shared only among friends. We, the media, use social networking sites to find all sorts of information. So do potential employers – at least for now.

People who watched television news this weekend might be confused into thinking that Monday’s “emergency” meeting of Governor’s Office policy advisers is significant – as if some sort of budget solution will emerge now that the governor has gotten serious. 

Those of us who spend more time at the Capitol know it’s a publicity stunt. It’s the kind of PR move initiated by people who know more about lobbying and campaigning than they do about actually communicating with the public and the media. 

Tack on the word “emergency,” and it looks as if something is finally going to shake loose after more than a year of budget problems and months of deadlock on how to close the deficit. And, of course, television reporters who spend about five hours per year covering the Capitol will jump on board and exclaim to hundreds of thousands of at-home viewers that the governor is rushing to action now that the Legislature has failed to close a $1.6 billion deficit.

These TV reporters will stand in front of the cameras with stern looks on their faces as if they understand how dire a situation this really is, but the fact is that they know far more about chasing ambulances than they do about state government. (On Saturday, one television station reported a statement from House Minority Leader David Lujan, pronouncing his last name as Loo-jen.)

Those of us who spend 10-12 hours per day at the Capitol are much more suspicious about the notion that the governor’s emergency meeting will produce anything other than sound bites to aid her election campaign. And, if we’re wrong, then why hasn’t she taken a more active role in the legislative process so far? Why has she waited until now – halfway through the fiscal year – to call an emergency meeting?

The longer it takes to come up with a solution, the tougher it is to balance the state budget. We’re six months into fiscal 2010, so we have only six months to cut spending from a budget that is already half-spent. The roughly $8 billion state pie that was available for adjustments in July has been eaten away to about $4 billion.

For 11 months now, the governor’s spokespeople have said as little as possible about the governor’s plans to solve the budget problems. In fact, when the Capitol press corps asks questions about the budget, Brewer’s communications office says pithy things like “She’s in the process of talking to legislative leaders now to come up with solutions that will be something lawmakers and the public can support.” Asked for more details, they decline comment. It’s happened hundreds of times during Brewer’s time in office.

We ask for time with the governor, and we are told she’s too busy to talk to the media. So we follow her to luncheons and other public appearances, and listen to the same speeches over and over, just so we can ask two or three quick questions as the governor is herded into an awaiting car by her staff.

And now they’ve called a dog-and-pony show – and opened it to the media – to give an impression that the governor has a plan and that she’s ready to make things happen. Make no mistake, there will be lots of media at the meeting. It will be packed with video cameras and people with recorders and notebooks, ready to capture every sound bite. Our reporters will be there too.

But you will have to forgive me for being skeptical. The only plan we’ve seen from the governor so far is a proposal to raise sales taxes, a plan that, by the way, lacks the necessary support from the Legislature. And, even if lawmakers pass a referendum and allow voters to have a say, it might fail at the ballot anyway. And if it does pass, it’s only going to fill about one-third of the fiscal 2011 deficit – it’s far too late for a sales tax increase to rescue the fiscal 2010 budget. 

The bottom line: Gov. Brewer is in a weak spot politically. She can’t seem to rally support among members of her own party for the one thing that she continues to ask for over and over. And she’s facing an election in which she is not considered the favorite. She’s tried to be tough with the Legislature – taking them to court on one occasion, vetoing budget bills on another – and she’s even tried to play nice with them by agreeing to spending cuts that she had opposed on prior occasions. Nothing has worked.

So, now we have an emergency meeting of her cabinet members. Look for lots of bluster, little substance and probably a lot of backlash from lawmakers after it’s all over. But there is a bright side for Brewer: The television media doesn’t know enough about politics to pick up on it, and the staged drama will probably be on every evening newscast in the state. Good for election campaigns, bad for the people of Arizona.