Workplace electronic privacy bill advances

After five hours of debate spanning two days, senators voted March 30 to advance a bill that would establish workplace electronic privacy protections in Nebraska.

LB821, sponsored by O’Neill Sen. Tyson Larson, would adopt the Workplace Privacy Act. As introduced, the bill was limited to an employee’s social networking sites. A Business and Labor Committee amendment, adopted 42-0, replaced the bill and would prohibit an employer from requesting or requiring that an employee or applicant:
• disclose his or her user names or passwords to personal Internet accounts;
• log into a personal Internet account in the presence of an employer;
• add anyone to his or her personal Internet account; or
• change his or her personal Internet account settings.

The amendment also would prevent an employer from taking adverse action against, failing to hire, or otherwise penalizing an employee or applicant for failure to disclose his or her personal Internet account setting information.

Larson said that employees in other states have been asked to open their social media accounts in an employer’s presence. Nine states have passed legislation on the topic and several others are considering similar bills, he said.

An employer would retain the right to promulgate rules governing Internet use and restrict an employee’s access to certain websites. An employer also could take action against an employee for downloading or transferring proprietary information.

The bill would allow for a civil suit if initiated within one year of an alleged violation of the act.

Larson said the proliferation of social media has created new privacy concerns for employees. An employer should not be able to view an employee’s private social media content any more than they should be able to go through an employee’s personal mail, he said.

“LB821 establishes basic social media privacy protections for individuals who are employed or seeking employment while protecting the property interests of employers,” he said.

Omaha Sen. Ernie Chambers offered an amendment March 29 that would add the words “including discrimination based on sexual orientation or gender identity” to the bill’s prohibition on employer retaliation. He said the change would make LB821 inclusive of all employees.

“All this amendment does is to grant the same protection to my friends—your friends, some of our relatives—who are members of the LGBT community, the protections that every employee is seeking,” Chambers said.

Larson opposed the amendment, calling it unnecessary.

“There is no discrimination [in the bill],” he said. “It is as broad and sweeping as possible. It protects every employee and every prospective employee.”

Chambers countered that LB821 creates a right to workplace privacy that currently does not exist in Nebraska law. As a result, he said, the definition of employee in the bill is only as broad as the understanding articulated in state policy generally.

“The policy of this state is clear that members of the LGBT community have no rights when it comes to employment, period,” Chambers said.

Lincoln Sen. Patty Pansing Brooks supported the amendment, saying employers could discriminate against LGBT workers without the additional language.

“Everyone that has equal rights in the workforce would have protections under this bill,” she said, “but without a way to protect [LGBT individuals] in the workforce, then they can be treated differently.”

The amendment failed on a vote of 10-26.

Chambers offered a series of similar amendments and procedural motions during debate March 30 in an effort to delay a vote on the bill. None of the amendments were adopted.

Larson then offered a technical amendment, which was adopted 30-0, and senators voted 40-1 to advance the bill to select file.

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