The Hawaii state legislature is considering a bill that would make it more difficult for employers to access the social media profiles of their employees and prospective employees. HB 1739 recently made it through the Hawaii House and was recently heard before the state Senate’s Judiciary Committee, which recommended the bill be passed with amendments.
The bill itself, introduced by a Democrat and eighteen co-sponsors, prohibits employers from practices that have become common in many workplaces today, including forcing employees to provide social media login credentials to access employees’ accounts; accessing the account in the presence of the employer; and adding the employer to a list of contacts associated with a personal account. The bill does contain some exceptions, including those for law enforcement and for investigation of the unauthorized transfer of proprietary business information.
Should this bill pass, Hawaii will join several other states with similar laws, including Virginia. Virginia HB 2081, now codified as Va. Code § 40.1-28.7:5 Social media accounts of current and prospective employees, states:
B. An employer shall not require a current or prospective employee to:
1. Disclose the username and password to the current or prospective employee’s social media account; or
2. Add an employee, supervisor, or administrator to the list of contacts associated with the current or prospective employee’s social media account.
C. If an employer inadvertently receives an employee’s username and password to, or other login information associated with, the employee’s social media account through the use of an electronic device provided to the employee by the employer or a program that monitors an employer’s network, the employer shall not be liable for having the information but shall not use the information to gain access to an employee’s social media account.
D. An employer shall not:
1. Take action against or threaten to discharge, discipline, or otherwise penalize a current employee for exercising his rights under this section; or
2. Fail or refuse to hire a prospective employee for exercising his rights under this section.
An important note in both the Hawaii bill and the Virginia law on this matter: neither prohibits employers from taking action about a current or prospective employee that is publicly available. This requires employees to have a robust and working knowledge of the privacy settings on all their social media accounts in order to properly avail themselves of the protections afforded by this law.
Whenever you share, post, or comment on something on Facebook, make sure you are aware of the privacy settings of each post. Your thoughts might be intended only for the consumption of close friends or family but, due to settings related to sharing with “friends of friends,” could be seen and taken out of context in a way that could be harmful to you. Meanwhile, everything you post on Twitter and Instagram is one hundred percent public unless you lock your accounts and approve each friend individually. If you use an unlocked account, be aware that you could be accountable for your tweets and the tweets that you share, like, and retweet (even if you have a disclaimer about your views not being those of your employer). If, instead, you choose to have a locked account, be careful with the approvals you grant to people with whom you work. It’s up to you to decide whether to wall off coworkers completely or whether to allow some in, but that decision should be carefully considered and well-informed.
Has your employer or a prospective employer forced you to turn over login credentials (like username and password) or forced you to log in to your accounts in their presence? Are you worried about your privacy at work and want to discuss how best to protect yourself? We have experience litigating employment issues in the era of social media. Contact us today.