The Unintended Consequences of a New Social Media Law

By Eric B. Meyer

I got an email the other day from my SHRM buddy Tara Mauk Arthur. She lives in Arkansas, which is one of 12 states to have a social media workplace privacy law.

As my readers know, subject to limited exception, laws like the one in Arkansas make it illegal for an employer to require or request that a current or prospective employee disclose his/her username or password for a social media account. Some, like the one in Arkansas, also make it unlawful to add a co-worker as a social media contact.

Now, as you know, my posts on these new laws have a common theme; namely, that these laws present a solution in search of a problem. And the problem with slapping together and passing legislation like this is you get some unintended consequences.

Yes, the law does prohibit all forms of “friending”

Cue Tara’s email:

I have a question for you. The law, as most, do say you can’t require, request … access to an applicant or current employee’s social media account. So, my question is: does this prohibit the “friending” between employers (aka managers/HR) and employees? It is access to the account. There would have been no “forcing” of friending but a mutual acceptance. However, how do you prove that when an employee becomes upset with you? HR people are smart. We know better. Furthermore, what about connections on LinkedIn??

Hmmm…

Well, let’s look at the Arkansas social media workplace privacy law. It clearly states that an agent of the employer (e.g., HR) may not “add an employee, supervisor, or administrator to the list or contacts associated with his or her social media account” and there is no exception if both people agree. Ditto a LinkedIn account, unless the LinkedIn account is “opened by an employee at the request of an employer” or “setup by an employee on behalf of an employer.”

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Even if initiated by the employee, connecting on social media too would be unlawful because the law states that “an employer shall not…cause a current or prospective employee” to connect on social media.

So, in Arkansas, a manager cannot connect with an employee on LinkedIn. Further, if two friends work together, but one is an agent of the employer, they cannot be friends on Facebook or follow one another on Twitter.

So much for the “social” in social media.

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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