Editors’ Note: Colleen Marshall, a Senior Attorney in Porter Wright’s Litigation Department, is also a widely-recognized, award-winning news anchor for Columbus’ NBC-affiliate, WCMH – 4. In a detailed interview with Porter Wright’s Sara Jodka last week, Colleen reports on the use of social media by employers: "You Can’t Delete Your Way Out Of Social Media."
As noted in a recent blog and in the news report mentioned above, 21 states have social media privacy legislation pending. But, social media privacy could soon be governed by an act of Congress.
Representative Elliot Engel (D-N.Y.) just introduced H. R. 537, the "Social Networking Online Protection Act" that he says will protect both employees and job applicants from employer efforts to obtain passwords to private social media accounts. Unlike most laws currently being considered on the state level, Engel’s bill would also protect passwords to email accounts. The bill is currently in the House Committee on Education and the Workforce, and makes a critical distinction between private accounts and social networking accounts owned by employers but maintained by employees in the course of employment.
Ohio Senate Bill 45, the Social Media Privacy Protection Act, is the most recent state effort to prohibit employers from gaining access to private electronic accounts, such as Facebook. Ohio 15th District Senator Charleta Tavares (D-Columbus) introduced the bill in an effort to prohibit employers, employment agencies, personnel placement services, and labor organizations from requiring an applicant or existing employee to surrender their personal password to a social media account. Senator Tavares says she views any effort to obtain an employee’s passwords as an invasion of privacy. Similar bills were passed in 2012 in six states: California, Delaware, Illinois, Maryland, Michigan and New Jersey.
It is vital to note that none of the proposed legislation, either on the federal or state level, would stop employers from monitoring the electronic profile of employees and applicants by viewing publicly available social media. As we discussed previously, social media is broadly accepted as a legitimate tool to screen job applicants and make judgments about character and personality. Additionally, social media passwords would still be accessible through discovery in instances of litigation or during wage and hour disputes. Social media passwords are proving to be invaluable tools for discovery, especially in the labor and employment context, as explained to me by Porter Wright attorney Sara Jodka in a recent television interview.
Lawmakers are grappling with employers’ right to know versus employees’ right to privacy. And, as previously noted, you can’t always delete your way out of the mess you create on social media. Additionally, some employees use their private electronic accounts as networking tools or to communicate with clients and vendors. Courts are currently being asked to decide whether executives or employers own Linked-in accounts that were created on company-owned computers. Disputes over passwords and twitter accounts are also making their way through the courts.
The outcome of these cases will be noted in future blogs because alerts will be sent to my personal phone, that is linked to professional calendars and email accounts owned by two employers, that are also available on my personal iPad, which is linked to my husband’s business account that is connected to his phone and the laptop used for his S-Corporation. Wouldn’t that make for interesting discovery?
A list of other states considering legislation to restrict employer access to private social media can be found here.