Business Monday

My View: Florida Senate weighs ‘overbroad’ bill prohibiting employers from seeking employees’ social media info

Hayden O’Byrne is an associate in K&L Gates’ Miami office.
Hayden O’Byrne is an associate in K&L Gates’ Miami office.

In a split vote (5-1) Florida Senate Bill 186 made it out of the Commerce and Tourism Committee on Oct. 5. Senate Bill 186 makes it unlawful for an employer to:

Request or require an employee or prospective employee to take an action that allows the employer to gain access to the employee’s or prospective employee’s social media account, including, but not limited to, requesting him or her to disclose the username, password, or other means of accessing his or her social media account if the social media account’s contents are not available to the general public.

While Senate Bill 186 might have been intended to address worthwhile privacy concerns, the actual text adopted is overbroad, making it difficult for Florida businesses to strictly comply.

Most concerning, the text of this bill prohibits a “request” for a “username.” Arguably, this bill would prohibit a roofing contractor, doctor or other small business owner from becoming Facebook friends with their workers, as questions like “Are you on Instagram?” or “Can you friend me on Facebook?” could be interpreted as prohibited requests for usernames.

The prohibition on requesting a “username” ignores that email addresses are almost always the “username” for email accounts (which fall within the expansive definition of a social media account). As such, this bill could subject a prospective employer to civil liability for saying, “What is the best email address to send you your offer letter?” Indeed, if an employee’s telephone number is their “username” for their voicemail, a prospective employer may not be able to ask for a telephone number either, as voicemail could likely fall within the broad definition of a social media account. Pursuant to the bill:

“Social media account” means an interactive personal account or profile that an individual establishes and uses through an electronic application, service, or platform to generate or to store content, including, but not limited to, videos, still photographs, blogs, video blogs, instant messages, audio recordings and email.

Senate Bill 186 also makes no exception for the actual personal relationship between the employer and the employee. For example, if a business owner gives their childhood friend or relative a job, the text of the statute would prevent the business owner from asking for the login information for a holiday photo album posted online. While the terms “employer” and “employee” are not defined in Senate Bill 186, these definitions in related sections of Florida’s general labor regulations are broad and circular.

In addition to ignoring the realities of social medial use, proponents of the bill fail to appreciate the significant legal burdens that employers owe to their customers, the public, and other employees by not allowing the disclosure of social media in conjunction with litigation or investigations. For example, if a company receives an anonymous complaint that an employee is gloating on their social media account about drunk driving on company time, shouldn’t an employer be allowed to see for themselves if the complaint is meritorious before firing the employee? If that employee hit a pedestrian, the pedestrian’s lawyer would be quick to point out that the employer should have known the employee was a drunk. Similarly, after such an accident, the employer could be in the awkward position of still not being able to view the allegedly incriminating social media page.

For these reasons, business owners in Florida — and their employees — should continue to track Florida Senate Bill 186. If it becomes law as written, employers will need to prepare detailed social media policies which, at a minimum, specify which groups of employees may “friend” other groups of employees. Given the lack of clarity in the statute, an outright prohibition may be the safest course.

Carol Lumpkin is a partner and Hayden O’Byrne is an associate in K&L Gates’ Miami office.