Employers in California and Illinois are now prohibited from demanding access to workers’ password-protected social networking accounts thanks to new laws taking effect in 2013.
Additionally three more states have jumped on the bandwagon. Arkansas, New Mexico and Utah have all passed legislation to prevent employers from requiring employees to hand over their usernames and passwords to social networking sites.
New Jersey is next on the list with pending legislation in the state house. The specifics of the bills are as follows, courtesy of Orrick Employment Litigation Blog
Act 1480, signed by Governor Mike Beebe on April 22, 2013, prohibits an Arkansas employer from requiring or requesting a current or prospective employee to (1) disclose his or her username or password for a personal social media account; (2) add an employee, supervisor or administrator to the list or contacts associated with the personal social media account; or (3) change the privacy setting associated with the personal social media account. The Act further prohibits employers from retaliating against current or prospective employees for exercising their rights under the Act. Under the Act, employers are permitted to view publically available information, are not liable for inadvertently receiving an employee’s login information, and may require access to an employee’s social media account if it is reasonably believed to be relevant to a formal investigation by the employer of allegations of an employee’s violation of federal, state or local laws or regulations or the employer’s written policies.
Violation of Title 11, Chapter 2 of the Arkansas Code may result in a fine of between $10 to $100, imprisonment for up to six months, and/or a misdemeanor conviction. It is not clear when this new law takes effect.
New Mexico’s governor, Susana Martinez, signed S.B. 371 into law on April 5, 2013. S.B. 371 makes it unlawful for a New Mexico employer to request or require a prospective employee to provide a password in order to gain access to the prospective employee’s account or profile on a social networking site or to demand access in any manner to a prospective employee’s account or profile. Unlike Arkansas’ law (and several other state laws), New Mexico does not prohibit employers from seeking access to their current employees’ social networking accounts. Further, the law does not limit an employer’s right to (1) have policies regarding work place internet, social networking or email use; (2) monitor employees’ usage of the employer’s electronic equipment; and (3) obtain information about a prospective employee that is in the public domain.
S.B. 371 goes into effect on July 1, 2013. Currently, there are no penalties for violating this new law.
On March 26, 2013, Governor Gary Herbert signed Utah’s Internet Employment Privacy Act (“IEPA”) into law. Under the IEPA, public and private employers are prohibited from asking an employee or job applicant to disclose login information for the employee or applicant’s personal internet account. It is also unlawful under the IEPA to retaliate against an employee or applicant for failing to disclose personal login information. Employers may, however, (1) request login information to gain access to the employer’s electronic communications device, account or service; (2) discipline or discharge an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal internet account without authorization; (3) investigate certain misconduct that involved the use of the employee’s personal internet account; (4) restrict or prohibit employees from accessing certain websites while using the employer’s electronic communications device or computer network; (5) monitor, review, access or block electronic data and communications stored on the employer’s electronic communications device or network; (6) screen certain employees and job applicants; and (7) view information that is available in the public domain.
The IEPA creates a private right of action for aggrieved employees or job applicants to recover up to $500 in damages. It goes into effect on May 14, 2013.
Social Media Legislation Pending in New Jersey
New Jersey’s A.B. 2878 prohibits employers from requiring current and prospective employees to disclose login information for accessing personal social networking sites or inquiring as to whether they have personal social networking accounts. The Bill received final legislative approval on March 21, 2013 and is currently awaiting Governor Chris Christie’s signature.
Employers in these states should make sure to review company policies to ensure that they are not requesting or requiring disclosure of social network passwords and usernames. Employees wishing to keep private what they post on social media sites would be wise to change their names on popular social networking sites to exclude their last name, increase the privacy of their profiles and make it more difficult for employers to seek out and find them on social media. Last, think before you post. One it’s out on the internet, it can never truly be erased.