“Peekaboo, I See You” Legislation to Protect Employees’ Social Media Accounts

Social media sites like Facebook and Twitter are enabling users to rapidly share ideas and connect like never before. Of course, this ability to so quickly and easily disseminate information – often, with a single status update or “post” that may attract hundreds or even thousands of views – brings with it weighty implications, particularly for employees and their employers. Employees posting content from password-protected sites for viewing by a select group of individuals whom they have “friend-ed” understandably hold some expectation of privacy. On the other hand, employee-posted pictures, opinions, or information may call into question the fitness or integrity of the employee or may cast an employer in a negative light.

Without access to social media accounts, an employer will likely not become aware of damaging online content until the harm caused by it has already occurred, and hence, it is already too late. As a result, it is becoming increasingly common for employers to ask job applicants and employees to share social media account login information to enable the screening or monitoring of their online content. Such efforts have not gone unnoticed by employees, privacy advocates, legislators, and others, who fear that such requests simply go too far.

These concerns prompted the recent passage of House Bill 5523 by the Michigan House of Representatives. If it becomes law, the legislation would restrict employer and educational institution access to employee and student social media accounts.

Specifically, the legislation would prohibit Michigan employers from asking employees or applicants to grant them access to their personal Internet accounts – including requesting username and password information – and it would prohibit the employers from penalizing employees or applicants for refusing to grant access to their accounts. Likewise, the legislation would prohibit Michigan educational institutions from asking students or prospective students to grant them access to their personal Internet accounts, and it would prohibit the educational institutions from penalizing the students or prospective students for refusing to grant access.

An individual found to be in violation of any of these provisions would be guilty of a misdemeanor and liable for a fine of up to $1,000. Separately, an aggrieved individual would be entitled to bring a civil action to enjoin violations, in which the individual could recover up to $1,000 in damages, plus reasonable attorney’s fees and court costs.

Notably, the legislation would not prohibit or restrict an employer or educational institution from viewing, accessing, or utilizing publicly available social media information. Thus, employers and educational institutions would be able to access the accounts of individuals who permit their accounts to be open to the public.

The proposed legislation is currently awaiting Governor Snyder’s signature. According to the bill’s sponsor, Representative Aric Nesbitt, R-Lawton:

Whether it is a social media profile or a personal bank account, people have the right to a certain level of privacy when it comes to what sensitive information they wish to share or not to share with the public. This bill helps find a respectable balance between the privacy of individuals and free market principles that allow employers and educational institutions to create security and stability within their institutions.http://www.gophouse.com/readarticle.asp?id=9441&District=80.

The full-text of the bill is available for viewing at: http://www.legislature.mi.gov/documents/2011-2012/billenrolled/House/pdf/2012-HNB-5523.pdf.

Please contact Wright Beamer with any questions you have regarding creating and implementing employment policies, as well as complying with applicable state and federal employment laws.

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