Unfortunately, the new law, effective May 11, 2013, does not provide for any personal remedy for an employee who is harmed (fired, not hired, or demoted) as a result of the employer’s violation of the law. The only remedy under the law is a fine of up to $1,000 for each offense that may be levied by the Department of Labor. The employee who refuses to provide her or his Facebook password, for example, cannot bring an action against the employer and cannot seek damages under the provisions of the new law. Only $23,064 was appropriated for enforcement of the law during its first year.
The new law, Colorado Revised Statutes §8-2-127, prohibits an employer from discharging (firing), disciplining, or “otherwise penalizing” an employee for failure to disclose personal password information, or for refusing to add the employer to the list of contacts who are permitted to access personal information.
The Department of Labor is authorized under the law to conduct investigations into any complaints, hold hearings, and make rules about penalties that may be imposed. Additionally, other private claims protecting privacy rights or protected categories, or medical information, may come into play in certain circumstances.
The statute does not address the situation in which an employer may ask the employee for permission to “look over their shoulder” on social media, while not accessing the private password, but experienced employment attorneys generally believe that an employer would likely not be permitted to take an adverse action against an employee who refused to allow the employer to examine personal information using the “over the shoulder” method of viewing the data.
The best advice for employees or those looking for a job is not to put any compromising or negative information on their Facebook pages – for example, some college students put up pictures of themselves and their friends in a bar, drinking and partying. Not a wise move if the pictures are widely available for viewing and the person is searching for a job! Facebook, LinkedIn and other social media should be utilized for more positive images, such as the picture of the potential employee serving a turkey dinner to the homeless on Thanksgiving
by Robert J. Truhlar