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