Just how much time does personal social media use by employees cost employers? According to a Salary.com survey on how much time employees waste at work, 64% of survey respondents reported spending up to an hour each day “surfing the internet”. Nearly every employee who does so is accessing social media, such as Facebook, Twitter and Pinterest. Social media is here, and employers and the law alike are trying to catch up. Due to recent legislation in New Jersey, things just got even more complicated in the office.
New Jersey’s Social Networking Bill. On March 21, 2013, New Jersey’s General Assembly passed Assembly Bill, No. 2878 (the “Act” or the “Bills), the most protective bill of employee and applicant’s “social networking” accounts to date. The Bill prohibits employers from even inquiring if a prospective or current employee has a personal social media account, much less their user name or password. In addition, the Bill further prohibits employers from retaliating or discriminating against employees for (1) refusing to provide their login information to their employer, (2) filing a complaint under the Act, or (3) participating in an action, such as an investigation or lawsuit, concerning a violation of the Act.
Employers that fail to craft and implement their workplace policies to reflect the terms of the Act can face serious penalties. Each violation is subject to a fine not exceeding $1,000 for the first violation and $2,500 for each subsequent violation. Perhaps more seriously, the Act allows employees and prospective employees to institute a civil action against employers within 1 year of the alleged violation. Penalties may include injunctive relief, compensatory and consequential damages, and attorneys’ fees.
More Employer-Friendly Legislation. Of course, not all states are as employee-friendly as New Jersey. California, for example, has carved out exceptions in its social media law allowing employers to request employees to disclose their login information and passwords to social media accounts under certain circumstances, such as investigations into workplace harassment. Maryland is even more employer-friendly, as it eschews penalties and only prohibits some conduct by employers.
California Assembly Bill 1844 (“AB 1844”) regulates employers’ ability to demand access to employees’ or prospective hires’ personal “social media” accounts. The law specifically prohibits employers from conditioning employment or requiring existing employees to disclose their login information to personal social media accounts.
California, however, does provide additional leeway to employers when it comes to performing investigations into employee misconduct. California law allows employers to “request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.” The law also allows an employer to request “an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.”
Similarly, Maryland’s law mirrors California’s prohibition on conditioning employment on requiring log-in information for employee or applicant social media accounts. Notably, Maryland’s law has no penalties attached to any violation of the law itself. The Maryland law is more flexible for employers in that it allows employers to request passwords when they suspect that an employee has, without permission, downloaded the company’s proprietary information to the employee’s social media accounts.
Considering the diverse patchwork of laws nationwide, however, employers should assess the numerous ways in which these and future social media laws will affect their employment practices.
Shoulder Surfing. Alongside the development of social media laws is the practice of employer “shoulder surfing,” which occurs when, instead of asking for the log-in and password information of prospective or current employees, a supervisor requests that the employee to log into his social media account and the supervisor watches the employee use his account. While the practice may seem invasive, shoulder surfing may be useful to employers in certain situations, such as workplace investigations when an employee complains of being harassed by another co-worker through social media. Evidence of wrongdoing by other employees can sometimes only be assessed in this way, as personal mobile devices allow employees to evade work place enforcement mechanisms.
In states that have passed social media laws, the authorization of shoulder surfing varies widely. For example, in our three comparative states, Maryland does not prohibit shoulder surfing whatsoever, and California limits it to situations where employers need to assess or investigate claims of harassment. In contrast, the New Jersey law would prohibit employers from shoulder surfing in any form, even in the workplace investigation context.
This patchwork of social media laws on both employee use and shoulder surfing highlights the need for employers to tailor their policies and procedures regarding employee use of social media, as well as the employer’s access and use of social media in the context of internal investigations. While there is an effort to pass a comprehensive, nation-wide law on the subject, the current patchwork is likely to remain conflicting from state to state. Legal guidance is increasingly important as these laws evolve and impact existing and future employment policies.