Delaware's version of the "password-privacy" laws currently pending in state legislatures across the country lives to see another day. H.B. 308, titled the "Workplace Privacy Act," was released from Committee last month and made it to the House a few weeks ago. It's slowly been making its way to the top of the agenda and closer to a vote by the House of Representatives.
Last week, I presented on social media at the monthly meeting of Delaware SHRM and, no surprise, the proposed law was a topic on the agenda. I discussed my concerns with the law as drafted-specifically, the prohibition on an employer asking an employee to show the employer his or her social-networking site for purposes of a legitimate workplace investigation. (For a more detailed discussion of the potential implications, see my post about a hypothetical allegation and investigation in the education setting).
After the SHRM meeting, I was approached by several members about what steps should be taken to address the flaws in the legislation as drafted. I worked with Delaware SHRM to draft a letter for members to submit to their State Representatives about the concerns employers have with H.B. 308. The letter went out today.
Perhaps as a matter of sheer coincidence, perhaps not, H.B. 308 was amended yet again today. The most critical provision for employers is Section (e) which contains the "permitted acts" for employers. Of most interest in this amendment is the new version of Section (e)(5), which was pitched as the "solution" to the concerns I've been raising. The section, unfortunately, contains several sentences that don't particularly belong together, which makes it even more confusing. I'll do my best to unravel the mystery one sentence at a time.
This Act shall not prohibit any employer from barring employees from accessing social networking sites while performing work for the employer.
Good gracious, let's hope not! Of course an employer is allowed to prohibit its employees from using its equipment and/or technology to engage in social networking or anything else unrelated to work during working time.
Employers are permitted to access electronic communication devices which are the property of the employer for the purpose of investigating employee wrongdoing, or otherwise serving the employer's business purposes.
Again, I think this is pretty obvious, though maybe less so than the previous sentence. In short, it says that an employer is allowed to "access" the smartphones, laptops, tablets, etc., that they provide to employees. In other words, the company can access its own property.
Notably, though, the Bill purports that an employer may do so lawfully only for the "purpose of investigating employee wrongdoing" or "otherwise serving the employer's business purposes." Supposedly, a charitable purpose or at the request of the employee would not be considered a "permitted act" under the amended Bill.
Where an employer has credible information indicating imminent workplace violence, the employer may question the subject employee as to alleged social network site postings.
Try to not to laugh-it's not funny. According to this sentence, in the event there is a credible threat of imminent workplace violence, the employer may "question" a "subject employee" (whoever that is), about his or her social-network-site postings. Wow. That's it?
Employers are also permitted to access an employee's social networking site profile or account which is public and non-restricted.
And, finally, an employer is permitted to look at publicly available information that is posted online. Well, yes. Of course employers are allowed to look at the Internet and the public information posted online.
It's pretty clear to me that this "amendment" may constitute a changed version of the Bill but not an improved version and certainly not the answer to the problems that I've discussed previously.
If you are not a SHRM member but want your voice to be heard on this legislation, I've uploaded a modified version of the SHRM letter, which I would encourage you to use as a template for your own letter. But act soon, there are just two sessions left before the summer recess and the Bill could be voted on soon.
Read more Labor and Employment Law insights from Margaret (Molly) DiBianca in the Delaware Employment Law Blog.
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