As we have noted in several
previous
blogs on this site, a number of states have either passed or are considering
legislation to prevent employers from demanding access to the social media
accounts of employees or job applicants.
The federal government recently joined this trend.
Congressman Engel (D-NY) introduced
on April 26, 2012, H.R.
5050, the so-called “Social Networking Online Protection Act (‘SNOPA’),”
which, if passed, would make it unlawful for an employer to “require or request
that an employee or applicant for employment provide the employer with a
username, password, or any other means for accessing a private email account of
the employee or applicant or the personal account of the employee or applicant
on any social networking website; or to discharge, discipline, discriminate
against in any manner, or deny employment or promotion to or threaten to take
any such action against any employee or applicant for employment because” the
employee refuses to provide the information or the employee has filed a
complaint or testified about the matter.
The proposed legislation defines a “social networking website” as any
internet service, platform, or website that provides a user with a distinct
account – (A) whereby the user can access such account by way of a distinct
username, password, or other means distinct for that user; and (B) that is
primarily intended for the user to upload, store, and manage user-generated
personal content on the service, platform, or website.” These prohibitions would be enforced by the
United States Department of Labor. The
Secretary of Labor could bring a civil action seeking injunctive relief and
where appropriate, employment, reinstatement, promotion, and the payment of
lost wages and benefits. There is no
fee-shifting provision. The Secretary of
Labor is empowered to assess civil penalties not to exceed $10,000, taking into
account the previous record of the employer and the gravity of the violation. The civil penalty collection provisions are the
same as those codified in the Migrant and Seasonal Agricultural Worker
Protection Act. See 29 U.S.C. 1853. The
proposed legislation does not provide a private cause of action. In other words, enforcement is exclusively in
the hands of the Secretary of Labor.
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