The past several years have brought intense scrutiny of the implications of now-ubiquitous social networking sites for employment law.
First came legal opinions addressing whether such material is relevant and discoverable in employment litigation such as EEOC v. Simply Storage Mgmt. LLC, 270 F.R.D. 430 (S.D. Ind. 2010), which held that content from social networking websites "is not shielded from discovery simply because it is 'locked' or 'private.' Although privacy concerns may be germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose in the litigation, a person's expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery." Also, Glazer v. Fireman's Fund Ins. Co., 2012 U.S. Dist. LEXIS 51658 (S.D.N.Y. Apr. 4, 2012), required a discrimination plaintiff to produce online chats with "platform for online advice and professional consulting services." Then came advisory opinions and enforcement proceedings from the National Labor Relations Board (NLRB) regarding employer actions with respect to employee postings on Facebook (NLRB Office of the General Counsel Memorandum 12–31, dated January 24, 2012). These developments, while broad in their scope, implicated only the subset of employees who had become litigants (in the former case) or had elected to discuss matters protected by the National Labor Relations Act on Facebook (in the latter).
Now, a flurry of legislative activity seeks to protect all employees and prevent employers from demanding and obtaining employee confidential log-in information to social networking sites, which permits those employers to review employees' private "pages" and other social networking data. On April 9, 2012, Maryland became the first state to pass such legislation, approving a new state law that bans employers from asking for employees' and applicants' social media site passwords. California and New York, states typically in the vanguard of employee rights, each have launched hotly debated proposals. Additionally, Facebook—the social networking giant at the eye of this new storm—recently weighed in in support of employee privacy.
The California Proposal
On Wednesday, April 18, 2012, California S.B. 1349, seeking to bar California employers from asking workers and job applicants to provide their passwords to Facebook, Twitter, and other social media sites, gained its first approval from a California Senate panel, moving it past the Senate Education Committee (which voted 7–0 in favor of the bill). With this committee approval, the bill moves over to the California Senate Labor and Industrial Relations Committee. The proposed legislation would make it unlawful for an employer to "require, or formally request in writing, an employee or prospective employee to disclose the user name or account password for a personal social media account or to otherwise provide the employer with access to any content of that account."
The bill's sponsor, Senator Leland Yee, explained that the bill was motivated in part by "reports of employers demanding as a condition of employment that prospective employees divulge their passwords so that they can get access to their social media accounts." He said, "Forcing anyone to divulge one's social media account information is an absolute invasion of one's privacy." While the broadly worded provision protecting employee information may provide a new basis for employment claims, supporters of the bill claim the opposite: that by forbidding employers access to a job applicant's page—which may contain detailed information about their sexual orientation, marital status, or other protected characteristic—the law prevents a rejected applicant from later claiming that it was the social networking access (and the information gleaned thereby) that resulted in the employer's failure to hire.
New York's Proposal
On the preceding Friday, April 13, 2012, a New York state senator introduced a bill seeking to make New York the second state to protect workers and prospective employees from employer requests. State Senator Liz Krueger's bill, S. 6938, also focuses on employee and applicant privacy. "An employer or employer's agent, representative, or designee shall not require any employee or applicant to disclose any log-in name, password, or other means for accessing a personal account or service through an electronic communications device," the legislation says. S. 6938 goes further, with an express anti-retaliation provision familiar in employment statutes, making it unlawful for an employer or its representative to fire, discipline, or otherwise penalize a worker for refusing to provide the private information, or to not hire an applicant based on such a refusal. The New York proposal expressly provides for a private right of action for an employee so aggrieved, who can seek to recover equitable relief (such as reinstatement or hire) and monetary damages.
What Does It All Mean?
Employers will continue to pursue scrutiny of the social networking pages of employees who place their use at issue in the workplace, either by bringing litigation about the workplace that renders their social networking use, statements, and activity relevant, or by expressly discussing the workplace on Facebook, a message board, live chat, or other site. However, this flurry of legislation demonstrates that lawmakers and advocacy groups will have no tolerance for "witch hunt"-type scrutiny of employees' private, personal information. With Facebook and the other providers in their corner, these laws may become reality. A strong, state-specific social media policy—and proper training for managers and human resources professionals—will be increasingly necessary as this area of the law develops.
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