The Massachusetts state Senate recently passed a bill that prohibits employers from requiring employees or job applicants to disclose social media account information. The legislation now moves to the Massachusetts House of Representatives for consideration. If the bill ultimately passes into law, Massachusetts will join more than twenty other states that have passed laws protecting employees’ social media privacy.
“An Act Relative to Social Media Privacy Protection”
The Senate bill (“An Act Relative to Social Media Privacy Protection,” No. 2063) provides in particular that an employer may not require, request or cause an employee or job applicant to provide access to a personal social media account or service. The Act also prohibits employers from making the disclosure of social media account information a condition of employment. This restriction would include, presumably, requiring employees to accept a Facebook “friend request” or even a LinkedIn invitation from their employers as a condition of continued employment. Finally, the Act prohibits employers from requiring, requesting or causing an employee or job applicant to reproduce content (photographs or videos, for example) contained within a personal social media account which is not publicly available.
The Act also includes provisions that provide similar privacy protections to students and applicants in academic settings.
The state Senate passed a similar social media privacy bill last summer, but that legislation stalled in the House Ways and Means Committee. The current version of the Act contains several additional exceptions, which its Senate sponsors believe will improve its chances of passing into law. Most notably, the Act allows employers to request access to an employee’s social media accounts, upon receipt of “specific relevant information,” to ensure compliance with applicable state or federal laws, legally mandated investigations of employees’ actions, or judicial directives. Under these circumstances, the employer must notify the employee of the grounds for the request, and any access to an employee’s social media account shall be limited to identifying “relevant evidence.” Information gained from access to the employee’s social media accounts may be used only for purposes of the investigation or a related proceeding.
Also, lest this legislation be misconstrued as official approval to log into Facebook at work, the Act includes a provision expressly preserving an employer’s right to maintain lawful workplace policies governing the use of the employer’s electronic equipment, including policies regarding the use of the internet, email or social media.
As for remedies, the section of the Act concerning student privacy contains a penalty provision, but the section on employee privacy does not. Instead, the Act provides that it will be included within the ambit of Section 150 of General Laws Chapter 149, which governs complaints and remedies for violations of employment laws, including the Massachusetts Wage Act. Section 150 currently provides that an employee claiming to be aggrieved by a violation of certain statues (to include the Act)
…may, 90 days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing, and within 3 years after the violation, institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief, for any damages incurred, and for any lost wages and other benefits; provided, however, that the 3 year limitation period shall be tolled from the date that the employee or a similarly situated employee files a complaint with the attorney general alleging a violation of any of these sections until the date that the attorney general issues a letter authorizing a private right of action or the date that an enforcement action by the attorney general becomes final.
Of note for employers, an employee who prevails in such an action is entitled to recover treble damages “for any lost wages and other benefits” and shall also be awarded the costs of the litigation and reasonable attorneys’ fees.
In the academic context, the Act provides that an aggrieved student or prospective student may institute a civil action for damages against an educational institution to restrain a violation of the Act, and may recover $1,000 for each improper request for access to social media account, $1,000 for each adverse employment action or actual damages, punitive damages (upon a finding of willfulness), and attorneys’ fees.
The Massachusetts House of Representatives is expected to take up the Act early next year. In the meantime, employers should be mindful that courts, as well as the National Labor Relations Board (NLRB), have taken an increasingly protective stance on employee privacy when it comes to social media. Recently, for example, the Second Circuit Court of Appeals affirmed a decision of the NLRB which ruled that two restaurant employees were wrongfully terminated for participating in a Facebook discussion about workplace concerns. In that case, the NLRB determined that the employees’ online communications constituted protected concerted activity because they were part of an ongoing sequence of discussions that began in the workplace about tax liabilities, tax withholding calculations, and back wages. The court agreed and affirmed.