Social Media Privacy Protection, Pt. 2

HB13-1046 by Rep. Williams and Sen. Ulibarri

Employee User Name Password Protection

 

Catching Up

We last left this bill as it was being introduced in January. The bill is essentially an employee protection mechanism designed to prevent employers from spying on social media (Facebook, Twitter, etc) by prohibiting the forced, or coerced, disclosure of login passwords. 

Committee Work

1046 arrived in the Business, Labor, Economic & Workforce Development committee chaired by its sponsor, Rep. Williams, on February 12th. You can check out the full audio recording of the hearing here, or read on for the summary. The bill survived, but many substantial amendments were added to it. While presenting her bill, Rep. Williams situated herself facing the committee and Rep. Kraft-Tharp (the Vice Chair) became acting Chair.

Of the concerned parties lined up to testify

1. The Colorado Dept. of Corrections 
2. The Colorado Dept. of Labor and Employment
3. The Colorado Defense Lawyers Association
4. The Colorado Association of Police Chiefs
5. The Employment Lawyers Association

All would support it if certain amendments were passed. 

The Dept. of Corrections wanted an exemption, arguing that being able to monitor their staff's social media was crucial for workplace safety in a dangerous prison environment. Things like inmate+staff relationships are prohibited, and the current best way to discover their existence is through social media.  The Association of Police Chiefs wanted the same exemption; both were granted it. 

Shaded text denotes an amendment

Another amendment was introduced by Williams which clarified that employees needn't add their coworkers or bosses to their social media contact list, nor ease their privacy settings to make their profiles more accessible. It passed as well.

Shaded text denotes an amendment

The final slice of the amendment pie came with a clarification that the Dept. of Labor and Employment is to be the sole enforcer of the legislation, and to be the one promulgating rules and penalties for it. Fines for employers found to be in violation of the law range from $1,000 to $5,000 in addition to anything else the department deems appropriate. After a bit of back and forth between committee members, it was unanimously approved.

Shaded text denotes an amendment

Par For Course

1046 is the norm for most agreeable bills. Stakeholders withhold their full support until changes they want are included as amendments. Occasionally differences are ironed out ahead of the hearing, but things evolve quickly in the General Assembly and digestion times are short. 

In this instance, law enforcement agencies became aware the bill existed, had their analysts look over it, and found that they needed to step in to prevent a major upset to their way of doing business. By making a strong but reasonable case for exemption they were able convince the committee of necessity without the sponsor feeling it would undermine the purpose of the bill. 

1046 moves on to the Appropriations Committee March 1st along with 14 other bills. In Appropriations, the deal is usually this: if a bill will cost the state even slightly more money than exists in current revenue streams it will likely die. 1046 is projected to expend $23,064 from the Employment Support Fund each fiscal year. However, since fines range from $1,000-$5,000 per infringement, and there is no sure way to predict how many infringements there will be, 1046 has the possibility of generating revenue by fining more than it costs to administer. Here is the official document breaking down the numbers, called the Fiscal Note.

Social Media Privacy Protection, Pt. 1

Bill Number: HB13-1046

Bill Title: Employee User Name Password Privacy Protection

 

Sponsored by: Representative Angela Williams and Senator Jessie Ulibarri 

 

Committee Assignment: Business, Labor, Economic, & Workforce Development

 

Some background

For the past few years, and especially during the past summer with notable stories in the news, employers have increased the practice of requiring employees and job applicants to give them access to their personal social media sites as part of routine background checks. 

Employers say it's necessary to see how people behave online, which could reflect their personality and risk level to the business, but opponents of the practice say it's a serious violation of privacy. 

In some instances the employer will look through Facebook or Twitter pages in the presence of the employee being scrutinized. In other cases, the employer demands the login information and digs through at their leisure, with or without the employee present. The level of investigation varies from checking recent status posts and pictures to reading every private message a person has ever sent or received. 

Hiring applicants are not excluded from this either. There are stories from across the country and across job sectors of people being rejected for a position because they refused to turn over their personal social media information. 

As the debate on the issue heats up, some states like Maryland and Illinois are reacting by passing legislation to prohibit employers from forcing, or even asking for, the surrender of usernames and passwords to log in. 

In Colorado

Social media privacy has become enough of an issue for our lawmakers to take action. Introduced in the House, HB13-1046 will prohibit employers from asking for, or threatening for, the login information of employees and current job applicants. Check out the exact bill language:

AN EMPLOYER MAY NOT REQUEST OR REQUIRE THAT AN EMPLOYEE OR APPLICANT DISCLOSE ANY USER NAME, PASSWORD, OR OTHER MEANS FOR ACCESSING THE EMPLOYEE'S OR APPLICANT'S PERSONAL ACCOUNT OR SERVICE THROUGH THE EMPLOYEE'S OR APPLICANT'S ELECTRONIC COMMUNICATIONS DEVICE.

There are limitations though. 

This bill will not prohibit an employer from browsing social media pages that are readily available to the public. If your privacy settings are loose, and compromising pictures or statements by you are there for all to read, it can still be considered a factor in stopping that promotion in the works or preventing your hire.

What's more, an employer may still launch an investigation against you if there's suspicion you're involved with "unauthorized downloading of proprietary information" or other illegal activities. Part of the investigation could involve surrendering social media login info. 

Although the bill allows an aggravated employee or hiring applicant to file a civil court action against an employer who violates this law, would a rejected applicant realistically take the time and spend the cash to protest their case in court? And what would be their chances against the legal team of a large business that turned them down?  

Tracking the bill

HB13-1046 has been assigned to the Business, Labor, Economic, & Workforce Development committee chaired by none other than Rep. Williams... the sponsor of the bill! When the chair of a committee hears their own legislation odds are good it will pass approvingly. 

I'll keep you updated as it moves along. Stay tuned!