Social Media Privacy Bill? “Dangerous Solution to an Illusory Problem”

By Eric B. Meyer

Room on the bandwagon for one more?

Citing no empirical evidence confirming a “practice” of employers requesting social-media passwords from candidates and applicants — that’s because there is none — Philadelphia may be poised now to follow in the footsteps of other states and municipalities that have passed similar laws to regulate a non-existent problem.

This proposed amendment to Title 9 of The Philadelphia Code, entitled “Regulation of Businesses, Trades and Professions,” would, in City Council’s words, “add a new Chapter, protecting social networking privacy, by prohibiting an employer from requesting or requiring access, in any manner, to an employee’s or prospective employee’s account or profile on a social networking site and providing for enforcement and penalties, all under certain terms and conditions.”

Bill could stop HR harassment investigations

Indeed, this new bill is so broad that it could preclude HR from conducting an effective investigating claims of harassment in the workplace. The bill prohibits employers from requesting access to an employee’s Facebook account through a co-worker who is a Facebook friend.

Consider this hypothetical:

Your employees, Jane and John, are Facebook friends. Jane claims that John has sexually harassed her. You investigate by interviewing Jane. Jane tells you that the sexual harassment consists of posts that Jane viewed on John’s Facebook page.

If the Philly bill becomes law, you may not ask Jane to provide you with access to John’s Facebook account. Taken further, one could argue that even asking Jane to print out the offensive posts she viewed on John’s Facebook page would violate the law.

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“Unworkable and dangerous solution”

Arguably, the new bill provides an exception; namely, affording employers the reserved right to obtain information “in compliance with any federal or state law.” You’d argue that anti-discrimination laws require an employer to investigate allegations of unlawful harassment and respond in a manner that is reasonably designed to end the harassment.

Could demanding access to a Facebook account fall within the scope of this employer duty? Unclear. It should be explicit in the bill, as it is under Michigan’s social-media privacy law. But, then again, there should be no bill at all.

To quote Jon Hyman, who wrote here yesterday about a similar bill now pending in Ohio, a law like this “presents an unworkable and dangerous solution to an illusory problem.”

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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