Amidst concern over employee privacy rights, a growing
number of states have restricted the access of employers to their workers' and
job applicants' social media accounts.
As of May 22, six states this year have adopted such laws. Oregon Gov. John
Kitzhaber (D) and Washington Gov. Jay Inslee (D) were the latest to sign on,
inking their names to OR HB 2654 and WA SB 5211, on May 22 and May 21
respectively. They joined governors in Utah, Arkansas, New Mexico and Colorado
who have signed similar bills in 2013. Those states join the four - Maryland,
California, Illinois and Michigan - who first adopted the prohibitions last
year (See "States move to keep workers' social media passwords away from
the boss" in the June 11, 2012 issue of SNCJ).
Arkansas lawmakers actually endorsed two privacy measures this year: HB 1901,
which enacts the restrictions on private sector employers, and HB 1902, which
applies the protection to students and employees of public universities and
colleges. Gov. Mike Beebe (D) signed both in April. New Jersey also enacted a
measure that applies to schools (AB 2879). The two states constitute the fifth
and sixth overall, joining California, Delaware, New Jersey and Michigan, which
adopted the measures in 2012.
Bills restricting access by employers have also reached the governor's desk in
Vermont (SB 7) and New Jersey (AB 2878). Vermont Gov. Pete Shumlin (D) is
expected to sign his state's measures into law.
Things are less certain in New Jersey, where Gov. Chris Christie (R) conditionally
vetoed AB 2878 on May 6. Many considered that measure to be the most
restrictive in the nation. In addition to barring employers from asking for the
access information, workers and job applicants would have been able to sue
employers for even asking if they have social media accounts. In his veto
message, Christie said the bill would not only bar employers from legitimately
assessing a job candidate's social media capabilities at a time when such
skills are often a significant part of their duties, it also would potentially
open employers up to frivolous lawsuits. Although the bill originally passed
with a veto-proof majority in both houses, the Assembly went along with the
governor, voting unanimously on May 20 to concur with his request to drop that element
of the bill. It is now in the Senate and will likely return soon to Christie's
Several more states may also follow suit. Bills in Louisiana, Connecticut,
Missouri, West Virginia, Texas and California have cleared at least one
chamber, with all but the Texas bill (HB 318) coming via an overwhelming vote.
Three (LA HB 314, MO SB 164 and WV HB 2966) were unanimous. While California
already restricts password access for private sector employers, its bill (AB
25) would broaden that restriction to include public sector employers.
Overall, according to State Net, 35 states have introduced social media access
restriction bills this year. Most of those adopted have generally been in line
with previous successful measures. There are some variations, however. In New
Mexico, SB 371, signed by Gov. Susana Martinez (R) on April 5, applies only to
job seekers, not current employees. In Utah, the bill signed by Gov. Gary
Herbert (R) on March 26 (HB 100) applies to both public and private sector
The bills adopted in Oregon, Washington and Utah also bar employers from
"shoulder surfing" - forcing the worker to log into their account and
then looking at the site over their shoulder - or from requiring the worker or
applicant to "friend" the employer so the employee's page is then
viewable. Bills signed in Colorado and Arkansas have no such limitations.
Some measures also allow employers limited ability to seek out what is on an
employee's Facebook or Twitter account. The Illinois House, for instance, has
endorsed HB 1047, which would amend the current Prairie State law to allow
employers to ask for an employee's personal social media access information if
that worker uses the site for business purposes. The measure, which would grant
the workers the right to reject the request, is awaiting a vote in the Senate.
Another measure, SB 2306, would amend the state's current law to specify it
pertains only to blocking employer access to an employee's or job applicant's
personal social media accounts, not those sponsored by the company.
New laws in Colorado, Washington, Utah and Arkansas also contain the
"investigation exception," which allows employers to ask for the
access information if they suspect a worker is using it to leak proprietary
information. But there is a variation in how they are applied. In Washington,
for instance, employers may still request content from a worker's social media
account if an investigation reveals there is a legitimate reason to do so. Even
so, the worker may decline the boss's request, while workers in other states
Privacy advocates have hailed the slew of new restrictions. In a statement,
Washington Sen. Steve Hobbs (D), who authored SB 5211, noted technological
advances that allow mass information sharing have made it that much more
critical to guard that information.
"Privacy shouldn't be a thing of the past that we are forced to sacrifice
every time technology moves forward" he said.
But the laws also raise questions. For one, in spite of a high number of media
stories on the issue, there is scant evidence that many employers ever ask
employees or job applicants to surrender their log-ins. Most media references
in fact cite a single 2010 case in Maryland involving a Department of
Corrections employee who was ordered to surrender his Facebook information as a
condition of rehire after taking a leave of absence. The employee complied but
later contacted the state chapter of the American Civil Liberties Union, which
challenged the policy. That led to legislation last year making the Old Line
State the first to block the practice.
"The vast majority of these stories are only anecdotal," says Philip
Gordon, an attorney with the Denver office of Littler Mendelson, where he
chairs the Privacy and Data Protection Practice Group. He points to a 2012
survey his firm did of nearly 1,000 C-level executives, human resource managers
and legal counsel from companies across the nation with capitalization up to $4
billion that indicated 99 percent of companies don't seek out such
There are other concerns as well. So much variation now in state law, Gordon
says, will make it much harder for multi-state employers to be in compliance.
It also makes it likely there will be legal challenges to some of the laws'
"In states where shoulder surfing is not explicitly forbidden, would a
court rule that it is permitted or that an employer is just trying to find a
cute way around these laws?" he asks. "And what about Twitter
accounts? Some of these laws bar an employer from asking an employee to friend
them on Facebook. Does that mean the boss also can't ask for the workers'
Twitter handle, which is otherwise public information? Some of this will
ultimately come down to how a court interprets the law."
It is conceivable it could also end up being decided in Congress. A group of
lawmakers in the U.S. House of Representatives has introduced legislation with
their own social media access restrictions, HR 537, the Social Networking
Online Protection Act (SNOPA). Unlike state measures, SNOPA would apply to both
employers and schools.
The bill's chances, however, are unclear. An earlier version of the bill from
lead sponsor Eliot Engel (D-NY) died quietly last year when Congress adjourned
without voting on it. Another Democrat, Rep. Ed Perlmutter of Colorado, took
his own swing at the issue in April by adding an amendment to HR 624, the Cyber
Intelligence Sharing and Protection Act (CISPA), an omnibus cybersecurity bill.
While House lawmakers approved the bill, they rejected the amendment.
The above article is provided by the State Net Capitol Journal. State Net
is the nation's leading source of state legislative and regulatory content for
all states within the United States. State Net daily monitors every bill in all
50 states, the District of Columbia and the United States Congress - as well as
every state agency regulation. Virtually all of the information about
individual bills and their progress through legislatures is online within 24
hours of public availability.
To subscribe to the
Capitol Journal and access archived issue go to the State Net Capitol
If you are a lexis.com subscriber, you can access State Net Bill Tracking, State Net Full Text of Bills, or State Net Regulatory Text. If you are interested in
learning more about State Net, contact us.
For more information about LexisNexis
products and solutions connect with us through our corporate site.