Delaware's Workplace Privacy Act, H.B. 308 will go to the Delaware House of Representatives one week from today. The Bill, if passed in its current form, would impact all employers, including teachers in the public and private sectors. You can read about some of the many other issues I have with the Bill in my previous posts but, in short, the legislation, as drafted has three main prohibitions.
What the Bill Would Prohibit
First, the Bill prohibits an employer from "requiring or requesting" that an employee or applicant turn over his "password or other related account information" to the employer. Although the intent of this provision is commendable, it, too, has a far broader reach than expected.
Second, the Bill prohibits an employer from "requiring or requesting" that an employee or applicant log into a social-networking site in the employer's presence.
Third, the Bill prohibits an employer from accessing an employee's or applicant's social-networking-site's profile account "indirectly through any other person who is a social networking contact" of the employee or applicant.
In plain English, the Bill prohibits an employer from: (1) asking an employee for his Facebook password; (2) asking an employee from logging into his Facebook account so the employer can see it; and (3) viewing an employee's Facebook page through another person's Facebook account.
How the Bill Would Affect Teachers
One of the many concerns I have with the Bill is that effectively prohibits an employer from investigating claims of employee wrongdoing and, simultaneously, prevents an employee accused of wrongdoing from defending herself. Here's an example:
School Principal gets a call from a "concerned parent," who wishes to remain anonymous. The nameless parent reports that he has reason to believe that a teacher is having an inappropriate relationship with a student. He goes on to say that he has reason to believe that the teacher and student are Facebook friends and have exchanged messages on Facebook that demonstrate wrongdoing.
Principal has received a complaint from a parent that Teacher has had inappropriate contact with Student via Facebook. The complaint appears credible. What will Principal do? What must Principal do? Investigate. Immediately.
Let's assume that Teacher is innocent and that, in fact, Teacher is not Facebook friends with any of her students. Principal calls Teacher into his office and confronts her with the allegation. After recovering from the initial shock of the accusation, Teacher denies any wrongdoing and volunteers to log into her Facebook account and show Principal that there are no students in her list of friends.
But Principal cannot oblige--to view Teacher's Facebook page or her Friends list would violate HB 308. So now what? What is Principal to do? Principal is prohibited by law from investigating the complaint other than by conducting in-person interviews of Teacher and Student. And, since the complaining parent did not disclose his name, Principal cannot request more information to substantiate the allegation.
It seems to me that Principal has one choice--suspend Teacher until the matter can be cleared up. I suppose Teacher could, and would, call upon the Union. But what help could the Union offer?
The scenario described above is not, at all, unlikely. A recent study in the U.K. found that more than one-quarter of all complaints of teacher misconduct with respect to students, including those with and without merit, originate from communications exchanged via social-networking site.
Although the study did not offer an explanation for its finding, I think most of us would agree that the problem is secrecy--when a parent discovers that his child has been engaged in any "secret" conduct, particularly with an adult, the parent is justifiably concerned. The element of secrecy and surprise is what leads the parent to conclude that something is not quite right and to make a complaint to the school.
Read more Labor and Employment Law insights from Margaret (Molly) DiBianca in the Delaware Employment Law Blog.
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