Michigan recently joined a growing trend of states that have introduced legislation to prohibit employers from asking job applicants and current employees for passwords and other private account information for social networking websites such as Facebook and Twitter.

Specifically, State Rep. Aric Nesbitt (Republican) proposed legislation that applies to state and private employers. Mr. Nesbitt’s legislation also prohibits educational institutions from asking for private account information, and penalizes them for dismissing or failing to admit a student who does not provide such details.

Michigan employers should have a number of concerns if this legislation were to be enacted.

First, Michigan employers would be prohibited from: 

• Requesting an employee or an applicant for employment to disclose access information associated with the employee’s or applicant’s social networking account.
• Discharging, disciplining, failing to hire, or otherwise discriminate against an employee or applicant for employment for failure to disclose access information associated with the employee’s or applicant’s social networking account.

Second and incredibly, an employer who violates the proposed legislation would be guilty of a misdemeanor punishable by imprisonment for not more than 93 days, a fine of not more than $1,000.00, or both.

Third, an “employer” is broadly defined to mean “a person … engaged in a business, industry, profession, or other enterprise in this state and includes an agent, representative, or designee of the employer.” Thus, any manager, HR professional, business owner, etc. who asked an employee or job applicant for log-in information would be facing these stiff penalties. 

Fourth, an employee or job applicant who is the subject of a violation of the proposed legislation may bring a civil action for that violation and may recover actual damages or $1,000.00, whichever is greater.

Additionally reasonable attorney fees and court costs (as if the misdemeanor is not bad enough) are also available to plaintiffs.

Criticisms of Proposed Employer Ban on Accessing an Employee’s Social Media

There is no shortage of statutes and regulations that apply to the employment relationship. And as previously noted by this blog, employers already have a number of reasons for not requiring employees or job applicants to provide access to their social networking information.

But even if I were convinced that companies need another employment statute imposed upon them, this proposed statute is not it.

Consider for example that there are no exceptions available to employers for requiring access to an employee or job applicant’s social networks. It is certainly not difficult to come up with circumstances where an employer should be able to bypass this statute: 

• 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.

And imagine the litigation landslide this statute would create. It would begin with a single accusation that a manager requested an employee for his or her Facebook password. With that accusation, an employee or job applicant has a ready-made lawsuit complete with a provision for the recovery of attorney fees (but only the reasonable kind) hanging over an employer along with potential criminal charges.

An attorney could make a rich career just on the settlement value of these claims …. hmmmm. Time to rethink the focus of my law practice. Thanks. Mr. Nesbitt.