States Are Moving Quickly to Restrict Employers’ Access to Personal Online Content - A Creative Services, Inc. Compliance Corner Article

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States Are Moving Quickly to Restrict Employers’ Access to Personal Online Content

05.22.14

As employer social media practices continue to evolve, new state laws are working to restrict employer access to employee social media account information.

On April 29, 2014, Tennessee became the 14th state to adopt a social media password protection law – the Employee Online Privacy Act of 2014. Earlier that same month,  Wisconsin enacted a similar law restricting employer access to the personal social media accounts of employees and job applicants. In addition, 12 other states have passed state social media laws including Arkansas, California, Colorado, Illinois, Maryland, Michigan, New Jersey, New Mexico, Nevada, Oregon, Utah, and Washington. Similar legislation is pending in at least 25 other states, and federal legislation is also being considered.

An Invasion of Employee Privacy?
Some employers have asked employees to provide their usernames or passwords for their personal social media accounts, claiming that access to such account information is needed to comply with federal financial regulations or to protect company trade secrets. However, many advocacy groups and others believe that this practice is an invasion of employee privacy.

In 2012, state lawmakers began introducing legislation to prevent employers from requesting the personal online account passwords from employees and job applicants. Some states have introduced similar legislation to protect students in public colleges and universities from having to grant access to their social networking accounts.

There are also bills currently pending in Congress : The Password Protection Act of 2012, H.R. 5684, and the Social Networking Online Protection Act, H.R. 5050. Both bills prohibit employers from requesting or requiring personal online information and propose fines for violation of the statute.

Key Points from the State Laws

  •     In general, the state social media laws do not limit an employer’s ability to review public information that is available on an applicant's or employee’s social media pages.
  •     All of the state social media laws prohibit employers from seeking access to the nonpublic social media pages of applicants.
  •     Some state laws restrict an employer’s ability to encourage an employee to “friend”  the company or employer representatives.
  •     Certain state laws provide at least limited exceptions for workplace investigations, while others do not.

What Employers Need to Do

  •     Employers should avoid requesting login credentials to employees’ personal social media accounts.
  •     Employers should ensure that all employees involved in the hiring process are aware of the restrictions imposed by the state social media laws. HR personnel should be trained on how to comply with the state social media laws.
  •     Employers should develop and implement social media guidelines to mitigate potential risks posed by employee social media postings.

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