Not long ago, we blogged about social media as a blessing and a curse for employers. On the one hand, social media help businesses market products and services; on the other, social media provide employees with an easily-accessible platform to draw negative attention to the business.
To prevent (or minimize) this negative attention, a small universe of employers has implemented policies requiring employees to turn over their usernames and passwords so that employers can monitor employee social media accounts – a practice that has been coined by some as “E-Stalking.” Some employers believe that the policies may: (a) protect against the disclosure of proprietary information or trade secrets; (b) ensure compliance with financial regulations; and (c) diminish exposure to legal liability.
Under current law, the Florida Legislature believes that employers can ask for log-in information and refuse to hire or even discipline employees who do not provide the information. Accordingly, lawmakers who view these “E-Stalking” policies as invasive of privacy interests have taken steps to prohibit them. Florida has joined a long list of states that have either passed, or are attempting to pass, legislation that would prohibit employers from requesting log-in information. If passed, Florida House Bill 635 and Senate Bill 186 (which would take effect October 1, 2016) would make it illegal for a Florida employer to ask for any usernames or passwords to employee or applicant social media accounts. The proposed legislation would not prevent an employer or potential employer from conducting a general search that turns up publicly-available information, such as a Facebook page that is available to the public.
Legalities of these policies aside (similar bills in Florida failed to pass in 2014 and 2015), from a practical standpoint, we would not recommend that employers “E-stalk” employees. Employers should be very mindful of issues that can arise from stumbling across information of which they may never otherwise have become aware. Lack of knowledge can help defend a variety of employment claims. As just one example, an employer accused of disability discrimination can present a compelling argument against a finding of discrimination when it can truthfully argue that the company was not even aware the employee was disabled (or could be perceived as disabled). But if an employee can claim that his or her disability could have been discerned from a review of his or her social media account — which they would argue is a policy of the employer — access to the social media information can muddle the issue and end up doing more harm than good. The same reasoning applies to other not-so easily discernible things that can be discovered from a social media account — such as religious beliefs, age, or even alleged whistleblower activities that were never raised with the employer.
We will continue to monitor the status of the proposed legislation. In the meantime, we encourage you to develop, carefully monitor, and regularly update your social media policy. In undertaking these tasks, give careful consideration to the best practices for ensuring that your social media policy becomes a blessing to your business, not a pitfall, trap, or curse.