As a growing number of states pass legislation which will protect individuals’ social media accounts from employer scrutiny, they have encountered a surprising adversary – FINRA and other securities regulators.
To date, at least six states have enacted social media employee privacy laws (which were blogged about here, here, here, and here) and upwards of thirty-five states have considered legislation since the beginning of 2013. Washington State may soon join the ranks with SB 5211, a bill unanimously passed by both chambers of Washington legislature on April 27, 2013, which now awaits the Governor’s signature. Social media password protection laws, although unique to each state, generally restrict employers from requesting or requiring that employees or applicants provide their social media user names, passwords, and account information. Supporters believe the laws are necessary to protect employee and prospective employee privacy and to prevent against unlawful employer action in response to an employee’s social media use.
FINRA, the Financial Industry Regulatory Authority, fears that the new employee privacy laws may directly conflict with securities rules and threaten investor protection. With an increasing number of financial firms taking to Facebook and Twitter to interact with investors and give financial advice, FINRA has set forth various guidelines governing social media use. Under FINRA rules, securities firms must “adopt policies and procedures reasonably designed to ensure that their associated persons who participate in social media sites for business purposes are appropriately supervised,” and broker-dealers must be able to “retrieve and supervise business communications regardless of whether they are conducted from a device owned by the firm or by the associated person.” FINRA Regulatory Notice 11-39 (August 2011). According to FINRA, if the employee of a broker-dealer is engaging in business communications over a social networking site, the broker-dealer must have access to the account for general monitoring and for its records. Broker-dealers must also be able to freely follow up on red flags, or misuse of an account. FINRA fears that the adoption of social media employee privacy laws may conflict with monitoring and reporting requirements and could force some employers into a lose-lose situation—violate state law or violate a FINRA rule. FINRA worries that employers who choose the former will increase investor risk and the potential for securities fraud.
FINRA has sent letters to lawmakers in approximately ten states seeking carve-outs to social media employee privacy laws for the financial services industry. Many of the laws already include narrow exemptions, which allow for employers to require disclosure if an employee’s alleged misconduct has risen to a certain level. FINRA does not appear satisfied with these exemptions, which may be too limited for broker-dealers to be in full compliance with monitoring, recording and supervision requirements. California has rejected FINRA’s request for an exception for the financial services industry, but it remains to be seen how the states will react in general.
FINRA is not alone in its concerns that social media privacy laws are too broad. On May 6, 2013, Governor Christie of New Jersey conditionally vetoed a social media employee privacy Bill which he criticized for its over-breadth and for putting employers at increased risk.
While it is too soon to predict how this conflict between employee privacy interests and financial industry oversight will be resolved, what is apparent is the increasingly complex issue of handling privacy in the age of social media.