Friday, May 11, 2012

Proposed Federal Legislation To Prohibit Employers From Requiring or Requesting Access to Social Media of Employees or Applicants

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.  

               This week, Senator Richard Blumenthal (D-CT) and Representative Martin Heinrich (D-NM) introduced the “Password Protection Act of 2012”, a copy of which can be found on Senator Blumenthal’s website.  This bill, which we will analyze in greater detail next week, provides for fines for employers who violate the proposed act.

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