You might remember in early 2012 the report of an employer who was demanding that applicants turn over social media passwords. Suddenly, employees came forward with similar stories, prompting Facebook to threaten suit against employers who violate user privacy. Since then, states have jumped into action. Depending on where you live, an employer who demands your password, or even asks about your social media use, may be breaking the law.
So far, six states have passed laws banning employers from demanding their employees' passwords. Eleven more have legislation pending. Unfortunately, a proposed federal law failed miserably. In a majority of states, employers and potential employers can still invade your privacy in this way.
The states that have acted to protect the privacy of social media passwords are:
Maryland -- Maryland enacted the first law passed, which became active in 2012: It prohibits an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through specified electronic communications devices; bars an employer from taking, or threatening to take, specified disciplinary actions for an employee's refusal to disclose specified password and related information; and bans an employee from downloading specified information or data; etc.
Illinois -- The state law, passed in 2012 and enacted Jan. 1, 2013, also prohibits employers from demanding passwords from applicants and employees.
new law went into effect at the beginning of the year.
Delaware -- Although many news outlets have reported that Delaware has a similar law, they tried to pass one and failed. The law that did pass prohibits educational institutions from demanding student passwords. Employees are not protected in Delaware.
Michigan -- Michigan's social media privacy law, which became effective at the end of 2012, contains exceptions for workplace investigations, theft of trade secrets or confidential information, employer-owned devices, and information that goes through the employer's network. This law also applies to educational institutions.
New Jersey -- New Jersey's new law, also effective as of December 2012, is so broad that it even prohibits employers from asking if employees use social media. Huzzah!
Laws pending: Delaware, Massachusetts, Missouri, New York, Ohio, Pennsylvania, South Carolina and Washington all saw bills introduced in 2012 that are in various stages of passage. 2013 already has seen more states introduce or re-introduce legislation to prohibit employer demands for passwords. California has a bill pending that would apply the prohibition to the public sector. Colorado, Massachusetts, Mississippi, Missouri, Nebraska, New Hampshire, New York, Oregon, Texas and Vermont all have legislation pending in the 2013 legislative session on this important issue.
What About Everyone Else?
The rest of us have to wait for either Congress to pass a law (I won't hold my breath) or for our state legislatures to wake up and address this issue for their constituents. I don't expect anything to happen anytime soon in my home state of Florida, which continues to be one of the worst states in the nation for employee protections.
There's still some hope for those of us who are left out though. Employers who overreach may well be breaking one of these laws:
National Labor Relations Act -- If your company's social media policy says that you aren't allowed to discuss or disparage the company in social media, that may well violate your right to complain about working conditions with co-workers. Recent cases before National Labor Relations Board have addressed illegal firings due to Facebook postings and other social media issues. Policies that prohibit "offensive," "demeaning," or "inappropriate" comments may well be over-broad.
Stored Communications Act -- This law offers some limited protection if your employer accesses your private messages on Facebook or other social media. Courts have pretty well gutted employee protections under this law. For instance, an employee who checked email on a company computer and forgot to log out had no protection. Twitter lost a fight to challenge a subpoena of a user's stored tweets. When a co-worker snooped a cell phone, the law didn't protect the employee's privacy because a court found that the law didn't apply to phones.
Americans With Disabilities Act -- If an employer's snooping reveals the existence of a disability, then any actions they take against the employee may violate disability discrimination laws.
Whistleblower protections -- If the employer discovers that the employee blew the whistle on another employer, the employer may end up in hot water under one of the many whistleblower protection laws.
Overall, I think employers really messed up when they started this extreme invasion of privacy. I expect employees to strike back with new laws, lawsuits against employers under many legal theories, and possibly more unionization and employee activism.
Or maybe we'll let them get away with it. Next thing we know, employers will be demanding our house keys, safe combinations, and bank account passwords. Then will come credit card statements, keys to private clubs, and wanting to know your weekend itinerary.
Go to a bar? Go on a date? Take a vacation? Expect your employer to want details if we don't stop them. How much snooping by employers is too much? I think social media passwords are a good place to draw the line. If we don't halt them here, expect even more intrusion in your private life by busybody employers.
If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs. While I can't answer every question here (and don't answer questions privately), your question might be featured in one of my columns, or an upcoming live video chat.
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