Texas has a reputation for being business friendly. More often than not, the Texas Legislature refrains from passing legislation providing solutions for nonexistent problems. However, a recent bill, passed by the Texas House and submitted to the Texas Senate would prohibit Texas employers from requesting social media user names and passwords from applicants and employees, addresses a problem that, in my opinion, does not exist in the Texas workplace.
HB 318 makes it an unlawful employment practice for an employer to require or request an employee or applicant disclose a user name, password, or other means for accessing a personal account of the employee or applicant, including a personal e-mail account or a social networking website account or profile. The bill does not prohibit employers from enforcing policies regarding the appropriate use of employer-supplied devices or use of devices (employer provided or personal) during work hours; from accessing publicly available or lawfully obtained information or monitoring employee usage of employer-provided devices. The bill exempts law enforcement agencies, employees of financial services companies and situations where the employer and employee enter into a contractual agreement where the employees consents to the disclosure of a user name and password of a personal social media account.
HB 318 appears to create a new private right of action against Texas employers because it makes the request or requirement a prohibited practice under the Labor Code akin to discriminating against applicants or employees on the basis of race, sex, religion, age and other prohibited categories. HB 318's amendment of the Labor Code would allow new causes of action to be filed against employers who violate the prohibition. Moreover, HB 318 contains no exception for employers to require employees who are the subject of an internal investigation of harassment, violation of law or company policy to provide user names and passwords to social media accounts that are the subject of an investigation. The bill also precludes employers from requesting or obtaining user names or passwords for social media accounts that are accessed by the employee through employer-owned or provided electronic devices.
In nearly 18 years of practice, I have never had an employer ask if it was legal to request or require an employee or applicant to provide a social media password. Not only have I never had an employer ask the question, I have never been involved in any case where the employer requested an applicant or employee to provide a social media password. In the Business and Industry Committee testimony on HB 318, there was no evidence of the prevalance of Texas employers who request or require employee user names or passwords of social media accounts --only anecdotal, second-hand accounts of such instances.
Can a Texas employer presently ask that applicants and employee provide social media user names and passwords? Absolutely. Can Texas employer currently separate an employee who refuses to provide those passwords? Absolutely. Can an employee resign who do not want to provide his or her passwords? Absolutely. But are Texas employers doing this in practice? Not in my experience.
House Bill 318 attempts to remedy a problem that does not really exist. It should continue to do so without HB 318. You can review the text of HB 381 here.
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