Lesser-Known Social Media Legislation
Quackenboss, Robert T., Risk Management
A wave of social media privacy legislation is rushing through state legislatures from Maine to California. To date, 10 states have enacted laws protecting social media passwords of employees and applicants, 30 similar bills are pending in state legislatures, and two have been introduced at the federal level. Lawyers, employers and the media have focused principally on two central aspects of most bills: prohibitions on employers requesting social media passwords from employees and applicants, and related non-retaliation provisions.
But the legislation contains several lesser-known privacy provisions representing additional pitfalls and nuances that should guide employers as they continue to navigate social media challenges.
While every piece of state legislation on social media prevents employers from asking employees or applicants for their social media usernames and passwords, 11 bills also contain provisions that prohibit employers from requiring employees or applicants to access their personal social media in the presence of the employer. This practice, known as "shoulder surfing," allows the employer to view the content that an employee or applicant has posted on Facebook or other social media without having to ask for a username or password.
Although "shoulder surfing" might seem less intrusive than asking for a social media password, employers should be wary, as four states--California, Illinois, Oregon and Washington--have already made this practice illegal. Further, California and Washington do not allow an employer to even request that an employee or applicant access social media in the employer's presence.
A less intrusive means of monitoring employees' activities on social media is to require employees or applicants to add their employer or supervisor to their social media contact list. If an employer or supervisor is included on an employee's contact list, they can view content that the employee posts to the social media network. Requesting a password or "shoulder surfing" would then be unnecessary--the employer or supervisor could simply log on to the social network site with their own account and view everything an employee posted, including pictures, comments and complaints about work.
However, 10 state bills ban requiring employees or applicants to connect with either an employer or a supervisor on social media networks. This practice has already been outlawed in Arkansas, Colorado, Oregon and Washington.
In Arkansas, the law prohibits even requesting or suggesting that an employee or applicant "friend" an employer or supervisor. In Colorado, Oregon and Washington, a request that an employee "friend" an employer is permitted, as long as the employee or applicant is not coerced or otherwise required to do so. Oregon's and Washington's laws are broader in whom they cover--in Oregon, employees and applicants also cannot be forced to friend employment agencies, and in Washington, they cannot be forced to add any person to their friend list. This creates special challenges with professional networking applications such as LinkedIn, where colleagues might naturally expect to connect with one another despite a hierarchical differential between manager and employee.
Social Media Privacy Settings
Six bills contain provisions that prohibit employers from requiring, requesting or even suggesting that an employee or applicant change the privacy settings on his or her social media network. For example, on Twitter, everything that a user posts is automatically viewable by the public. On Facebook, however, a user can select the privacy settings for much of the content they post, making it viewable by the public, by friends only, by friends of friends, or by only a specific group of friends. If the content is made public, then anyone with access to the Internet can view it, even people who do not have a Facebook account. …