Why Delaware's Proposed Workplace Privacy Act Is All Wrong

Why Delaware's Proposed Workplace Privacy Act Is All Wrong

Delaware's version of a Facebook-privacy law, called the "Workplace Privacy Act" (H.B. 308), will go to hearing on Wednesday before the Telecommunications, Internet, and Technology Committee in Delaware's House of Representatives. The bill, as amended, purports to prohibit employers from requesting or requiring an employee's or applicant's password to his or her social-networking site.

In actuality, the bill would fail to accomplish that single objective but would, at the same time, have implications far beyond the stated objective. I wrote in a more demure tone about some of my concerns regarding this bill. But, after speaking with the bill's sponsor, Rep. Darryl Scott (D-Dover), today, and after seeing a video update (below) in which Rich Heffron of the Delaware State Chamber of Commerce reports, without much concern, that the bill is likely to pass before the close of the session on June 30, it seems that a more direct approach may be in order.

I've outlined my many, many objections to the bill and have attached that document for those readers who may be interested in the more specifics. (HB 308, Full Text, Amendment, and Comments, PDF). For those of you more interested in the short-and-sweet edition, here's the Executive Summary of what I consider are the most dangerous provisions:

No Friending, Even for Family

The bill would prohibit a supervisor from sending a Facebook-friend request to any other employee in the organization--even if the supervisor worked in one division in Delaware and the friend-to-be worked in a different division in Hong Kong.

A supervisor whose teenaged son works for the same employer would be prohibited from "requiring or requesting" her son's Facebook password or "other related account information."

Employers May Not Investigate and Employees May Not Defend Accusations Made Against Them

The bill would prohibit an employer from investigating a report that an employee posted something to his Facebook page, such as: (a) a threat to commit workplace violence; (b) release of information protected by HIPPA and/or the state data-breach laws; (c) communication of trade-secret information; or (d) any number of other wrongdoings.

Not only would the employer be prohibited from asking the alleged wrongdoer about the allegations but the employer would also be prohibited from asking the accuser to support the allegations with proof of what she saw on Facebook that prompted her to make the report. In short, the employer would have no choice but to fie the accused--regardless of whether the individual wanted to clear his name.

The Rule, Though Too Broad, Is Swallowed By Its Exemptions--for Some Sectors

Yet, despite the incredibly overreaching effects of the bill, it is, at the same time, simply insufficient in its narrowness. the bill falls far short of satisfying its supposed purpose--i.e., to prevent employers from requiring employees and applicants to relinquish access to their social-media accounts in the name of a job. The two most glaring failures in this regard include the stated exemptions for:

  • Law Enforcement, who are altogether exempt from the provisions of the bill; and
  • The Department of Corrections, . . . maybe.

The exemption for the Department of Corrections is trickier. Although the bill seems to to exempt the DOC from the prohibitions in the bill, it is not entirely clear because the bill also states that the DOC shall not be prohibited "from accessing an employee's social networking site for purposes of employee supervision and retention."

Pardon me? If you think you know what such purposes may include, I'd love to hear about it.


Don't Say I Haven't Tried

Lest you think that I am the type who rushes to judgement and who condemns that which I did not create, let me take a preemptive strike against such conclusions. I contacted Rep. Scott and sent him a link to my prior blog post, which set out several of the (major and obvious) issues with the bill as it was drafted, and, today, shared my detailed outline of issues with him.

He responded that, although he appreciated my comments, and would give them "consideration" as he finalized the amendment but belived we were coming from different perspectives--his of the employee and mine of the employer--and would not, therefore, see eye to eye on all of the issues.

My question is this: Can we see eye to eye on an overly broad, unworkable law that has far-reaching implications for employees and employers? Despite what my business card may say, anyone who knows me knows that I come down squarely in the middle between "employer and employee," which is the only place I believe anything productive can be accomplished.

I will assume that the Representative had not yet actually read my comments. Had he read them, he would have seen that one of my biggest concerns about the bill is the scenario discussed above, in which the employee who is wrongly accused but who is unable to defend himself and who loses his employment as a result. Nor can I imagine any legitimate basis for there to be exemptions for law enforcement or the Department of Corrections as they are drafted in the proposed legislation.

Call to Action, Delaware Employers and Employees

If you are a Delaware employer, a Delaware employee who uses social media and/or social-networking sites like Facebook, business proponent, or defender of civil liberties, I humbly suggest that you call your state representative between now and Wednesday at 3 p.m. to express the concerns you may have. And feel free to forward along my Comment Outline.

Read more Labor and Employment Law insights from Margaret (Molly) DiBianca in the Delaware Employment Law Blog.  

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