By Phil Riske | Managing Editor, Rose Law Group Report
The state Senate is not all atwitter over a bill dealing with social media in the workplace. With days waning for the 2013 legislative session, sources tell Rose Law Group Reporter there’s little chance SB 1411, which prohibits employers from requesting or requiring a user name, password or other means of accessing an online personal account from employees or job applicants, will get out of the Legislature this year because of concern from various camps, including chambers of commerce.
The bill, sponsored by Sen. Rick Murphy (R-Glendale), was adopted by two committees in February, but has not been brought to a third floor vote.
Social media privacy, meanwhile, continues to be a hot topic, and more state legislatures are taking action to limit, if not prohibit, employer access to personal accounts of employees and prospective employees.
The bill does not prohibit employers from viewing what’s on employees’ social media sites.
The National Conference of State Legislatures said last month such legislation has been introduced or is pending in at least 35 states. The issue continues to gain steam as three states, Arkansas, New Mexico, and Utah, enacted social media privacy laws this year.
In 2012, a bill was introduced in the U.S. House of Representatives that prohibited employers and certain other entities from requesting employees or other specified individuals to provide means for accessing a personal account on any social networking Website. That bill was not enacted.
Employers are well advised to monitor this rapidly developing area of law and tailor their practices accordingly.
David Weissman, director of the Rose Law Group Employment Law and Managed Health Care Law Practice says striking an employer-employee rights balance is important.
“Although I’m generally not in favor of placing greater restrictions on employers, particularly those that may limit the employer’s ability to gather information to make good hiring decisions, take appropriate disciplinary actions against employees and so forth., I must say that I support limiting employer access to password protected, personal social media sites,” Weissman said.
“The whole idea of privacy settings on a site such as Facebook is to keep personal content such as photos and private comments restricted to friends and family, and there’s very little reason for employers to access that information. In fact, doing so could cause the employer to come across information such as age, religion, national origin and so on which could potentially serve as the basis for a discrimination claim.
Weissman concluded, “So overall, I’d say that a law like this may be in the interests of both employees and employers, so long as it contains appropriate exceptions for situations when employer access is truly justified.”
Murphy told the Senate Committee on Public Safety his bill is similar to one that’s been offered as a national model and it calls for a balance of rights between employers and employees.
“We believe in privacy . . . but employers have the right to know what’s going on in their workforce,” Murphy testified.
“There’s a growing concern with the proliferation of social media that if prospective employers are allowed to demand up front, or even after hiring,” he said, “to demand from their employees their login information for their social media, that that’s a big privacy breach for a typical citizen, and they’re [employees] really not in a position to object because their livelihood is threatened if they don’t comply.”
At the same committee hearing, lobbyist Michael Gardner, representing Microsoft and Verizon Wireless, said the bill doesn’t define “personal account” and doesn’t address penalties for misconduct, such as using a personal account, such as Facebook or Twitter, for sexual harassment.
Murphy’s bill permits an employer to require an employee to disclose any user name, password or other means for accessing non-personal accounts or services that provide access to the employer’s internal computer or information systems.
It also prohibits an employee from downloading employer proprietary information or financial data, without authorization, to an employee’s personal website, an Internet Website, a Web-based account or any similar Web account.
Murphy says having someone else’s passwords gives a person control over that account and places your identity in someone else’s hands.
