There is a growing legislative movement to pass laws that prohibit employers from requiring employees to turn over their social media (i.e., Facebook) passwords. Such a bill was introduced in the Florida Senate on September 25, 2013 by Senator Jeff Clemens, a Democrat from Lake Worth. A number of other states have either already passed such laws, or have similar bills pending.
In technical terms, the Florida bill would prohibit employers from asking or requiring employees to provide the username and password to social media accounts, from basing hiring decisions on a candidate’s refusal to provide such information, and from retaliating against employees who refuse to provide the information. The bill provides employees and applicants a private right of civil action in court against companies who allegedly break the law.
I am unsure if such a law is necessary or even a good idea, mainly because I’m not aware of any trend by employers to seek or use such information. If a client were to ask me whether it was a good idea to require their employees to provide access to the private portions of the employees’ social media accounts, I would generally say no. Requiring employees or applicants to provide such information is likely to decrease morale and harm the company’s efforts to hire and retain good employees.
Perhaps more important, it is doubtful that employers should even want this type of access. Too much access can mean too much information about “protected characteristics” or “protected activity” on which employees can bring some type of discrimination or retaliation claim. For example, we may think we know a lot about our coworkers, but access to a coworker’s private Facebook page is likely to open up an entirely different realm of information, such as information about the person’s religious and political beliefs, social behaviors (drinking, drugs, sexual activities), and other similar private information. Employers are generally better off not knowing about this type of information when it comes time to make personnel decisions.
Due to the nationwide trend for passing such laws, I would say this bill has a good chance of passing. If it does, the law would go into effect on October 1, 2014. As always, stay tuned for updates on this and other pending employment legislation.