Delaware has joined the growing list of states that have passed a social media privacy law. The proposal, which will take effect immediately upon being signed by Governor Jack Markell, contains broad provisions. Here’s what you need to know now.
Passwords are (officially) off-limits
The primary intent of the law is to prohibit employers from asking employees and job applicants to disclose personal social media passwords. The good news is that most employers are already in compliance. Only a tiny fraction of employers have any interest in a job candidate’s passwords, so this part of the law shouldn’t present much, if any, issue.
For the rare employer that has considered requesting an employee’s or a job applicant’s password, though, the law is clear—passwords are officially off-limits.
Don’t ask about social media accounts
The law also prohibits employers from “requiring or requesting” an employee or applicant to “disclose personal social media.” What that means, exactly, remains unclear. Read narrowly, this prohibition would prevent inquiries about private (i.e., nonpublic) social media accounts.
But the law doesn’t actually say “nonpublic information,” and therefore, we must assume that the prohibition applies even to public accounts. For example, under the new law, you couldn’t ask a candidate about the mere existence of a social media account. Specifically, you would be in violation of the law by asking a candidate, “Do you use Twitter?” or “Are you on Facebook?”
And you also shouldn’t ask employees or applicants for a username or handle. That’s problematic for employers that are concerned about making wise hiring decisions. If a candidate’s publicly available social media contents make it clear that he would be a poor fit for the job, you should be able to find that out before extending a job offer. Nevertheless, under the new law, you may not directly ask the candidate for access to a social media account.
Being friendly has risks
An amendment to the bill prohibits employers from sending “friend” requests or invitations to connect with employees or applicants online. This is the most troublesome provision. Because the law doesn’t make clear who an “employer” is, any supervisor or manager in the organization could arguably meet the definition.
Under that reading, no supervisor or manager could ever send a Facebook friend request—or even a request to connect via LinkedIn—to any employee, regardless of whether the employee reports to the supervisor or works in the same location. For example, a supervisor for a multinational corporation would be prohibited from sending a request to any employee in the entire organization.
The broad prohibition is also likely to be uniquely problematic for HR and recruiting departments seeking to expand their social media presence. Many recruiting and HR professionals encourage their team members to “Like” the organization’s Facebook page or connect with or recommend each other on social media in an attempt to build the company’s online visibility. Under the new law, this type of initiative would be unlawful.
Tread softly on social media
Until the new law is tested, employers with workers in Delaware should adhere to following guidelines:
Passwords are off-limits. Do not ask a current or prospective employee for access to her personal social media accounts.
Be wary of friend requests. Supervisors should be instructed not to send social media requests to connect with any employees—particularly those who report to or who work with the supervisor.
Google is your friend. The law specifically states that it doesn’t cover information obtained from the Internet—provided it’s in the public domain. So, if you want or need information about someone, a Google search is the safest bet.
Molly DiBianca
We hope this information is valuable to you. If you have any questions, please do not hesitate to contact Holman HR.