Florida Senate - 2015                                     SB 126
       
       
        
       By Senator Clemens
       
       
       
       
       
       27-00222-15                                            2015126__
    1                        A bill to be entitled                      
    2         An act relating to social media privacy; creating s.
    3         448.077, F.S.; defining terms; prohibiting an employer
    4         from requesting or requiring access to a social media
    5         account of an employee or prospective employee under
    6         certain circumstances; prohibiting an employer from
    7         taking retaliatory personnel action for an employee’s
    8         refusal to allow access to his or her social media
    9         account; prohibiting an employer from failing or
   10         refusing to hire a prospective employee as a result of
   11         the prospective employee’s refusal to allow access to
   12         his or her social media account; authorizing civil
   13         action for a violation; requiring that the civil
   14         action be brought within a specified timeframe;
   15         providing a penalty for a violation; providing for
   16         recovery of attorney fees and court costs; specifying
   17         that an employer is not prohibited from seeking access
   18         to social media accounts used primarily for the
   19         employer’s business purposes; providing an effective
   20         date.
   21          
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Section 448.077, Florida Statutes, is created to
   25  read:
   26         448.077 Employer access to employee social media accounts
   27  prohibited.—
   28         (1) As used in this section, the term:
   29         (a) “Electronic communications device” means a device that
   30  uses electronic signals to create, transmit, or receive
   31  information, including computers, telephones, personal digital
   32  assistants, and other similar devices.
   33         (b) “Retaliatory personnel action” has the same meaning as
   34  in s. 448.101.
   35         (c) “Social media account” means an interactive personal
   36  account or profile that an individual establishes and uses
   37  through an electronic application, service, or platform to
   38  generate or to store content, including, but not limited to,
   39  videos, still photographs, blogs, video blogs, instant messages,
   40  audio recordings, and e-mail.
   41         (2) An employer may not do any of the following:
   42         (a) Request or require an employee or prospective employee
   43  to take an action that allows the employer to gain access to the
   44  employee’s or prospective employee’s social media account,
   45  including, but not limited to, requesting him or her to disclose
   46  the username, password, or other means of accessing his or her
   47  social media account if the social media account’s contents are
   48  not available to the general public.
   49         (b) Take retaliatory personnel action against an employee
   50  as a result of the employee’s refusal to allow the employer
   51  access to the employee’s social media account.
   52         (c) Fail or refuse to hire a prospective employee as a
   53  result of the prospective employee’s refusal to allow the
   54  employer access to the prospective employee’s social media
   55  account.
   56         (3) An employee or prospective employee may bring a civil
   57  action against an employer who violates this section in a court
   58  located in the county in which the employee or prospective
   59  employee resides or where the alleged violation occurred. Such
   60  action must be brought within 2 years after the violation
   61  occurred. The employee or prospective employee may seek
   62  injunctive relief to restrain the employer from continuing to
   63  act in violation of this section and may recover damages in an
   64  amount equal to the actual damages arising from the violation or
   65  $500 per violation, whichever is greater. An employee or
   66  prospective employee who prevails is entitled to recover court
   67  costs and reasonable attorney fees.
   68         (4) This section does not prevent an employer from
   69  requesting or requiring an employee to disclose a username,
   70  password, or other means of accessing a social media account
   71  used primarily for the employer’s business purposes.
   72         (5) This section does not prohibit or restrict an employer
   73  from complying with a duty to monitor or retain employee
   74  communications which is established under state or federal law
   75  or by a self-regulatory organization as defined in s. 3(a)(26)
   76  of the Securities Exchange Act of 1934 and 15 U.S.C. s.
   77  78c(a)(26), or from screening a prospective employee who
   78  completes an application for employment at a law enforcement or
   79  prosecutorial agency or an employee who is the subject of a
   80  conduct investigation performed by a law enforcement or
   81  prosecutorial agency.
   82         Section 2. This act shall take effect October 1, 2015.