Proposed Michigan Social Media Law Banning Employer Access to Employee Passwords - Not Something to "Like"

Facebook Like.jpgProposed Michigan Social Media legislation is back in the headlines. Specifically, Chris Gautz of Crain's Detroit Business reported that Michigan Senate House Bill 5523, (sponsored by Rep. Aric Nesbitt, R-Lawton), was approved unanimously by the House in September and is now sitting on the Senate floor. 

This bill would "outlaw" employers from requiring employees and prospective hires to turn over their passwords to social networking sites, like Facebook, as a condition of employment.

Michigan Proposed Legislation Banning Employers from Accessing Employee Social Media Sites 

This post previously reported about (and criticized) this proposed legislation banning employers from asking employees and applicants for their social media passwords.

Under the proposed legislation, employers would be prohibited from (1) requesting an employee or applicant to disclose access information associated with a social network account, and (2) from discharging, disciplining, failing to hire, or otherwise discriminating against an employee or applicant for failing to disclose access information.

The problem, however, is that this really is not a problem. 

Legislative Solutions Still in Search of a Problem?

I offered a number of criticisms that are worth reviewing and reasons why employers should be concerned about this proposed legislation, e.g., employers found in violation of the act would be guilty of a misdemeanor and subject to imprisonment up to 93 days and/or a maximum fine of $1,000.

These criticisms and concerns still exist. But what I've found interesting about this proposed legislation is the scant evidence suggesting that it is even needed. And the actual genesis for this proposed legislation is even less compelling: It originated on hearsay and the reasoning that other states were enacting similar legislation so Michigan should too. In this regard, Crain's Detroit reports:  

The impetus for the bill, Nesbitt said, came from constituents in his district that had heard about such practices going on in other states and asked him to work to make sure it could not happen in Michigan. He said other states, among them Maryland and Illinois, have been working on similar policies.

Certainly these are good intentions, but such intentions should not substitute for reason when it comes to imposing additional regulations on employers, especially regulations that impose criminal sanctions. 

Instead, the question that should be asked is whether employers asking for social medial password information of employees or applicants is an actual problem in Michigan. The answer appears to be "no."

Consider the following from the Crain's Detroit article: 

  • Mary Corrado, president and CEO of the Livonia-based American Society of Employers, said her organization does background checks for member companies, and social media passwords have not been requested before.
  • Charlie Owens, state director of NFIB-Michigan, said his members largely felt it [asking for employee passwords] wasn't something they would need to do anyway.

Closing Thoughts from the Soapbox

I certainly applaud Mr. Nesbitt and other stakeholders who are looking to protect Michigan employees and to maintain a productive workplace environment that respects individuals. But my experience in working with employers and employees is consistent with the preceding conclusions that employers demanding access to social media accounts of employees and job applicants is not something that is taking place. And there are any number of reasons why this would be a bad idea: Requiring Employees or Job Applicants to Turn Over Facebook Passwords? Three Reasons Why This is a Horrible Idea

However, there are circumstances - which the proposed legislation does not allow for - where it may be appropriate for an employer to ask for access to an employee or job applicant's social media account: 

  • Investigating customer complaints or complaints of workplace harassment or discrimination may require access to an employee's social networking account; or
  • An employer may feel the need to review an employee or job applicant's social networking account if a position involves working with children or vulnerable populations like the elderly.

At the end of the day, employers that do decide to incorporate a measure of social media due diligence into hiring and employment decisions need to have in place the proper procedures for complying with existing and evolving obligations that already cover social media. But we don't need to add to the list of regulations.    

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