http://www.sun-sentinel.com/business/fl-facebook-employers-legislation-20151113-story.html
All of those Facebook, Twitter or Instagram postings are hidden from anyone but your friends, right?
Don't be so sure. Some employers are demanding passwords from employees and job-seekers for social media accounts protected with privacy settings.
Under current law, Florida businesses can ask for social media log-ins and fire employees who don't provide them. And one statewide industry group said it wants to protect that right, but some policymakers think it steps over the line.
Sen. Jeff Clemens, D-Lake Worth, has proposed a law that would prohibit an employer from requesting the user name, password, or any other means of accessing the social media accounts of employees or prospective employees. Employers would be barred from retaliating against employees who refuse. The legislation also would prohibit employers from refusing to hire a prospective employee who refuses access to a social media account.
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Workers could sue, recovering up to $500 per violation.
The legislation is on the agenda for the 2016 legislative session. If passed, the bill would take effect Oct. 1.
The issue, pitting worker privacy against corporate interests, has been simmering nationwide for years. Around 2012, some employers began demanding social media passwords from job applicants, students and employees, according to a report by the American Civil Liberties Union.
The ACLU cited news reports about a New York City statistician who was asked for his Facebook password during a job interview. The ACLU also noted that the Maryland Division of Corrections required an employee to provide his Facebook login and that police departments in Norman, Okla., and elsewhere asked applicants to turn over their Facebook passwords as part of background checks.
Legislation against the practice has been considered in at least 23 states this year, with nine states enacting the legislation, according to the National Conference of State Legislatures.
The ability to sue is why some Florida industry groups have opposed the legislation, which has been floated in previous sessions.
Associated Industries of Florida said it opposes Senate Bill 186, saying it would have "detrimental ramifications" for Florida businesses.
"It is our belief that it is critical that employers be able to access these accounts and any devices supplied or paid for by the employer," Associated Industries said in a letter to members of the Senate Commerce and Tourism Committee. Employers can be held legally responsible for employees' actions using company equipment, the group says.
Associated Industries also said employers have to be able to investigate allegations of illegal activity or work-related misconduct, which could involve an employee's personal social media account. The behavior could be job-related theft of sensitive data, insider trading or fraud, the group says. Or it could involve an employee harassing others through social media.
"Responsible employers need to be able to investigate the allegation to maintain a safe working environment," the group says.
The Florida Chamber of Commerce it is not taking a position on the bill, and the Florida Retail Federation is taking more of a middle-of-the-road approach.
"We fully support the right of our members to monitor their own networks and hardware appropriately, but we also respect the rights of employees and potential employs' privacy — unless an employee is doing something on company equipment to harm the employer or a fellow employee," said Florida Retail Federation spokesman James Miller.
Tallahassee lawyer Jim Garrity, who has blogged about the privacy rights of employees, said potential clients have told him about job interviews where they were asked to log into their social media profiles and then to flip through their postings while the interviewer looked over their shoulder. He did not identify the companies.
Garrity said it's mostly smaller companies without human resources departments that need "educating" about the issue of demanding social media passwords from job candidates.
"It is a terrible and invasive practice that has almost no relevance to a candidate's fitness for a position," he said. "The justification employers sometimes give is that it's part of a good-faith background investigation."
Garrity said employers can learn things they could not otherwise from a social media profile: religious beliefs, age, whistleblower activities, prior injuries and associations with unpopular causes.
In a hiring situation, "once an interviewer sees those things, it's not likely to slip their mind," he said.
And when an employer looks, it may find postings it doesn't like or that could hurt the business. That also can lead to legal action.
In 2012, the National Labor Relations Board found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law. In the same year, the board found that it was unlawful for a nonprofit organization to fire five employees who participated in Facebook postings about a co-worker who intended to complain to management about their work performance. A NLRB report did not identify the company.
Lawyers and recruiters say social media is best left out of hiring practices altogether, although many employers scan applicants' public social media posts without asking for private passwords. Transworld Business Brokers in Fort Lauderdale, for example, says it routinely screens applicants through a Google search, by reviewing a LinkedIn profile or by viewing a Facebook page, if available for general view.
When Transworld Business Brokers CEO Andy Cagnetta was looking for a new executive assistant for his Fort Lauderdale office, a recruiter gave him a name. He turned to Facebook to find out more about her and saw that they had a friend in common.
Cagnetta called the friend about her and liked what he heard. He later hired Shannon Ferguson.
Ferguson didn't find out until after she was hired that her boss had looked at her public Facebook page and talked with the friend. But she viewed it as a compliment.
"It made me feel like I was going to work for someone who is thorough," said Ferguson, who has worked at Transworld since the spring.
Debra Bathurst, vice president of human resources at Oasis Outsourcing in Boca Raton, said the proposed Florida legislation "makes sense."
"As an HR professional, some of us are wondering why an employer would want that information," Bathurst said. "Unintentionally, you're going to wade into waters that are going to have some blowback."
Sharlyn Lauby, a human resources expert in Fort Lauderdale who writes the HR Bartender blog, cautions employers and recruiters who do look at applicants' social media to be careful about making judgments based upon "only one piece of information. You don't have the full picture."
And she tells job candidates that "if a prospective employer asks you for your password, a candidate has got to step back and say, 'What are they going to ask from me if I'm an employee?'"
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