Marry in haste, repent at leisure,” goes the old Hasidic proverb, and with that ancient admonition in mind, let us consider once again our ever-dependable Arkansas State Legislature, which has apparently done it again … or rather, is TRYING to do it again. By “it,” of course, I mean, “pass a heavy-handed, possibly unconstitutional law that seeks to strip yet another freedom from its constituency.”
I realize I’m being vague. When you mention the Arkansas State Legislature in conjunction with heavy-handed, possibly unconstitutional legislation, you could mean a lot of things: curtailing one’s freedom to marry whomever one chooses, for instance, or authorizing businesses to deny services to those who don’t happen to subscribe to the same set of religious beliefs, or … well take a look at the legislative agenda and pick your poison.
But this newest nugget of governmental wisdom currently oozing its way down the legislative pike goes a little beyond “heavy-handed” and certainly divorces the “possibly” from “unconstitutional.”
I refer to HB 1087, which passed the Arkansas House of Representatives 91-1 last month and was scheduled for consideration on Wednesday by the Senate Labor Committee.
In essence, the bill would amend a two-year-old law that bans employers from requiring employees to “friend” them on Facebook or follow them on Twitter. The proposal leaves mostly in place the law’s other provisions, which prohibit employers from demanding that employees — or even candidates for employment — disclose their social media account passwords or alter privacy settings so as to allow wholesale access to the information contained therein.
I say “leaves MOSTLY in place” because the proposal apparently exempts religious organizations and organizations that deal with children entirely from the social media privacy protections.
So, if our esteemed legislators approve this bill, and if Gov. Asa Hutchinson signs it into law — or, as he has in the past, simply ignores it and allows it to become law without his signature — any employer or potential employer doing business in the state of Arkansas would be legally authorized to demand that employees or potential employees extend an open invitation to their online social circles. And in the case of churches, schools, daycares, etc., such employers and potential employers would also be legally greenlighted to demand passwords and privacy settings for social media accounts, basically allowing them to barge into employees’ personal lives and rifle around to their hearts’ content.
But of course, the legislators’ intent is not to infringe upon anyone’s privacy.
Just ask them.
Republican State Rep. Nate Bell, of Mena, who sponsored the bill, insists that the proposed changes are not an affront to personal privacy, but rather a heroic attempt to help employers ferret out disloyal employees and potential employees who make slanderous and unacceptable statements to their online friends.
“What we’re trying to do is to just move that line back so that employers, if say an employee is making slanderous statements about their employer in social media, that the employer has the right to know that,” Bell said in an interview with a Little Rock television station two months ago. “We clearly don’t want people — employers — being able to access that bedroom information. Probably don’t want them accessing the backyard information. But what happens in the front yard is very similar to what happens in the street.”
OK, in the first place, Rep. Bell,false and disparaging statements made via social media would most probably be written statements, and written statements can’t be “slanderous.” The word you’re looking for is “libelous.” In the second place, your entire “bedroom/backyard/front yard” analogy is as irrelevant as it is convoluted.
“What happens in the front yard is very similar to what happens in the street.” So what you’re saying is that employers have a right to know everything their employees say or do on their own time outside the office while they’re NOT being paid, just as long as those statements or actions occur within the government’s definition of “the street”?
I have a different analogy for you.
Suppose your employer suddenly decided he wanted to be invited to all social gatherings at your home so he could monitor any “slanderous” statements you or your friends might make about him or his company.
What if, for the same reason, he wanted transcripts of all your private telephone conversations with your best friend or your spouse or your siblings or your parents. What if he said, “I think I’d like to go through your wallet and see what photographs you carry around with you because some employees carry inappropriate photos, and we need to make sure you’re not one of them.”
Each of these would be a clear invasion of your privacy, an encroachment of your employer into areas of your life that are your own and for which he or she does NOT compensate you. Would you meekly stand by and let it happen, or would you be incensed, outraged, insulted by the very suggestion?
Employees in Arkansas — as in most other states — are already largely at the mercy of their employers. Arkansas is a so-called “at-will employment state,” meaning that, in most cases, you can be fired at any time and for any reason … or for no reason at all. Depending upon the state, there are certain exemptions, but for all intents and purposes, your boss can legally fire you if he wakes up one morning and realizes he doesn’t like your face. Isn’t that enough protection for employers? In addition to being able to fire you for nothing, they should also have unfettered access to your personal, off-the-clock online interactions?
Now of course, companies have a right to take action if an employee is publicly besmirching them or their good name. But this bill isn’t about a company’s right to deal with infractions that have already occurred. It’s more like a pre-emptive strike designed to protect them from what MIGHT occur. You MIGHT make libelous statements about the company or post inappropriate material, so they need the ability to monitor your out-of-work activities just in case you decide to do that. And the principal casualties of this pre-emptive strike are individual privacy and the right to free association, both of which are explicitly protected by the United States Constitution.
But the Arkansas State Legislature has demonstrated time and again its fundamental lack of respect — indeed, its utter disdain — for constitutional protections that run afoul of its largely capricious notions of right and wrong, so none of us should be surprised, and I doubt many of us are. Sadly, we’ve come to expect it, much like an unhappy spouse who comes to expect bad behavior from the mate he or she married in haste.
People will cluck their tongues and say, “Well, it’s her own fault. She married the guy.”
But then, so did we.
(Former News-Times staffer Jim Patterson writes from northeastern Colorado. Email him at [email protected])