If a tree falls in a forest and no one is around to hear it,
does it make a sound? Far be it from me to start your
work week off with a digression on George Berkeley 18th
Century philosophies, but really: If the legislature
passes a law to impose penalties for conduct and no one is engaging
in the conduct, does it make an impact?
The snide (yet still somewhat witty) sarcasm aside, the
California "solution" to the "problem" is not
particularly novel. Its new law prohibits employers from requiring or
requesting that an employee or applicant provide a social media
username or password. Employers also cannot
discipline, fire or otherwise retaliate against an individual for
refusing to disclose his or her username or password when the
requirement or request violates this law.
There are, however, two exceptions. First, an
employer maintains its "existing rights and obligations"
to request the disclosure of personal social media that is
"relevant to an investigation of allegations of employee
misconduct or employee violation of applicable laws and
regulations[.]" Second, an employer also may
still require or request a username or password for the purpose of
accessing a device that is owned and issued by the
employer. Interestingly, the new California law does
not contain a provision that had existed in earlier
versions of the bill; namely, some protection from negligent
hire claims for employers who do not use social media to
obtain background information on a particular individual.
The California law appears to take effect immediately/
Employer Take Away: What should you
as an employer take away from this
I'm not suggesting that employers necessarily should be able
to condition one's job status on providing potentially personal
social media information. But this latest state
law seems to be a solution with no real, true problem.
In fact, when I bring up this "Facebook password demand"
issue with clients and seminar audiences, the overwhelming reaction
seems to be: "Are people really doing that?"
Still, we're about reporting on developments, even when it
no longer appears to be a development that will stir things up a
lot. I just don't think that many employers are out
there demanding that applicants or current employees provide their
Facebook passwords, or else. So perhaps these
legislatures can switch gears to address real solutions to real
problems in this area. Like a legislative fix to the
avalanche that has become the NLRB's position on all things
social media (more on that tomorrow). Or, a legislative
solution for those employers who walk the tightrope between getting
sued for discrimination because they learned too much from social
media, and getting sued for negligent hiring because they
didn't search for enough information.
In the end, if you're in Maryland, Illinois, and now
California, don't demand social media passwords.
For the rest of you, your tree will likely be falling
soon. If you're still listening.
Corporate tweeters or bloggers – employees who post promotional and often entertaining commentary on behalf of their employers’ businesses – add much of their own personal brand – their voice, their opinions, their snarky remarks – to the information they are disseminating on the company’s behalf.
In a First Report and Order, Further Notice of Proposed Rulemaking and Notice of Inquiry released at the end of March in a proceeding begun in 2003, the Federal Communications Commission continued its comprehensive review of its rules, policies and procedures governing radiofrequency radiation and limits on exposure to human beings.