Last week, seven Ohio democratic senators introduced Senate Bill 45, which would prohibit employers “from requiring an applicant or employee to provide access to private electronic accounts of the applicant or employee.” It is identical to last year’s S.B. 351, which never made it out of committee. I have a feeling this year’s S.B. 45 will meet a similar fate, which is a good thing. For an analysis of what this bill says, you can read last year’s blog post on S.B. 351.
This bill has lots wrong with it.
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It attempts to add to Ohio’s protected classes. It would elevate asking an employee for a social media login or password to the same level of importance as discrimination based on race, sex, religious, national origin, age, disability, and military status. For a practice in which few, if any, employers engage, such protections are over reaching and beyond ridiculous.
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It contains no exceptions for internal investigations. Suppose, for example, Jane Doe reports that a co-worker is sending her sexually explicit messages via Facebook. You have an absolute duty under both Title VII and Ohio’s employment discrimination statute to investigate and take whatever remedial action is necessary to ensure that any misconduct ends. Yet, this bill would prohibit you from even asking the accused to provide access to his Facebook account as part of your investigation.
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It contains no exceptions for regulated industries. For example, registered representatives have special rules that dictate what they can or cannot say to clients and prospective clients via social media. FINRA requires employers to track and maintain records of the communications between registered reps and the public. Yet, this bill would prohibit a securities firm from requiring its registered reps to turn over these communications. It would also prohibit the firm from even asking for access to a rep’s social media account to investigate a customer complaint or regulatory issue.
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Check out the penalties. In addition to civil fines, violations bring into play the full panoply of damages available under Ohio’s civil rights statute, including compensatory damages, pain and suffering, emotional distress, and punitive damages.
Just because something is a bad HR practice does not mean we need a law to regulate it. Nevertheless, the solution proposed by S.B. 45 has so many problems that, as proposed, it presents an unworkable and dangerous solution to an illusory problem.
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