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Uncharted territory: regulating social networking

Uncharted territory: regulating social networking

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.

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