Florida Senate - 2016 SB 186 By Senator Clemens 27-00288-16 2016186__ 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; 6 prohibiting an employer from taking retaliatory 7 personnel action against an employee as a result of 8 the employee’s refusal to allow access to his or her 9 social media account; prohibiting an employer from 10 failing or refusing to hire a prospective employee as 11 a result of the prospective employee’s refusal to 12 allow access to his or her social media account; 13 authorizing civil action for a violation; requiring 14 that the civil action be brought within a specified 15 timeframe; providing a penalty for a violation; 16 providing for recovery of attorney fees and court 17 costs; specifying that an employer is not prohibited 18 from seeking access to social media accounts used 19 primarily for the employer’s business purposes; 20 providing an effective 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) “Retaliatory personnel action” has the same meaning as 30 in s. 448.101. 31 (b) “Social media account” means an interactive personal 32 account or profile that an individual establishes and uses 33 through an electronic application, service, or platform to 34 generate or to store content, including, but not limited to, 35 videos, still photographs, blogs, video blogs, instant messages, 36 audio recordings, and e-mail. 37 (2) An employer may not do any of the following: 38 (a) Request or require an employee or prospective employee 39 to take an action that allows the employer to gain access to the 40 employee’s or prospective employee’s social media account, 41 including, but not limited to, requesting him or her to disclose 42 the username, password, or other means of accessing his or her 43 social media account if the social media account’s contents are 44 not available to the general public. 45 (b) Take retaliatory personnel action against an employee 46 as a result of the employee’s refusal to allow the employer 47 access to the employee’s social media account. 48 (c) Fail or refuse to hire a prospective employee as a 49 result of the prospective employee’s refusal to allow the 50 employer access to the prospective employee’s social media 51 account. 52 (3) An employee or prospective employee may bring a civil 53 action against an employer who violates this section in a court 54 located in the county in which the employee or prospective 55 employee resides or where the alleged violation occurred. Such 56 action must be brought within 2 years after the violation 57 occurred. The employee or prospective employee may seek 58 injunctive relief to restrain the employer from continuing to 59 act in violation of this section and may recover damages in an 60 amount equal to the actual damages arising from the violation or 61 $500 per violation, whichever is greater. An employee or 62 prospective employee who prevails is entitled to recover court 63 costs and reasonable attorney fees. 64 (4) This section does not prevent an employer from 65 requesting or requiring an employee to disclose a username, 66 password, or other means of accessing a social media account 67 used primarily for the employer’s business purposes. 68 (5) This section does not prohibit or restrict an employer 69 from complying with a duty to monitor or retain employee 70 communications which is established under state or federal law 71 or by a self-regulatory organization as defined in s. 3(a)(26) 72 of the Securities Exchange Act of 1934, 15 U.S.C. s. 78c(a)(26), 73 or from screening a prospective employee who completes an 74 application for employment at a law enforcement or prosecutorial 75 agency or an employee who is the subject of a conduct 76 investigation performed by a law enforcement or prosecutorial 77 agency. 78 Section 2. This act shall take effect October 1, 2016.