Proposed Law Makes it Unlawful for Florida Employers to Require Their Employees to Provide Personal Social Media Passwords

PasswordBY:  TIMOTHY C. HAUGHEE

MARCH 11, 2014

Currently, Florida employers may ask their employees or prospective employees to provide their social media passwords and can fire the employees or refuse to hire the applicants if they refuse.  Florida legislators, however, have proposed a new law that would outlaw such practice in an effort to protect the personal privacy of Florida’s workers.

If passed, Senate Bill 198 would make it unlawful for an employer to:

(1)  request or require an employee or prospective employee to disclose a username, password, or other means of accessing a social media account;

(2)  request or require an employee or prospective employee to take an action that allows the employer to gain access to the employee’s or prospective employee’s social media account if the account’s contents are not available to the general public;

(3)  take retaliatory action against an employee for refusing to give the employer access to the employee’s social media account; and

(4)  fail or refuse to hire a prospective employee as a result of the prospective employee’s refusal to allow the employer access to the prospective employee’s social media account.

SB 198 authorizes an employee or prospective employee to bring a civil lawsuit against an employer or prospective employer who violates the proposed law and to collect attorney’s fees in the event the employee or prospective employee prevails in such civil lawsuit.

SB 198 contains an exception that allows employers to request or require an employee to disclose a username and password for social media accounts that are “used for business purposes.”  Presumably, the exception allows employers to monitor their own social media accounts that are managed by their employees, or to monitor their employee’s personal social media accounts that have been established or used to promote the employer’s business.  However, one of the sponsors of SB 198 has publicly commented that the exception is broadly phrased such that it creates a “gray area,” especially with respect to an employee’s personal social media account that is occasionally used for business purposes.

Currently, SB 198 is pending in the Florida Government Oversight and Accountability Committee.  We will keep you posted as SB 198 continues to move through the Florida Legislature.

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