Employer Access to Employees’ Social Media

A fast-growing area of employment law is the subject of employer access to the social media accounts of employees and applicants. Since the first legislation on the subject passed in 2012, 16 states have passed laws regulating employer access to employee/applicant social media accounts. In addition, legislation is pending or has been introduced in more than 30 states.The first four states to pass laws on the subject in 2012 were Illinois, Maryland, Michigan, and California. In 2013, eight more states passed legislation: Arkansas, Colorado, Nevada, New Jersey, New Mexico, Oregon, Utah, and Washington. So far in 2014, four more states have joined in: Louisiana, Oklahoma, Tennessee, and Wisconsin.

These laws generally prohibit employers from requesting or requiring employees or applicants to provide usernames, passwords, or other information necessary to get access to the employee’s or applicant’s social media accounts. Most also prohibit employers from taking any adverse employment action based on a refusal to provide such information.There are several notable variations and exceptions. Some states will allow employers to request or require disclosure of login information for an employer-provided device, or for employer-provided accounts or services used for a business purpose (California, Louisiana, Tennessee, Oklahoma, Utah, Wisconsin). Note that this exception applies to the login information necessary to access the device or account, not to the login information necessary to access a private social media account. However, once someone has access to the device itself, access to social media accounts through the device may be relatively easy. Consequently, employees using employer-provided devices should think twice before using such devices to access private social media accounts.

Also, these laws generally do not apply to publicly-available social media content. Consequently, employees and applicants should regularly monitor privacy settings for services like Facebook and Instagram, if self-censorship isn’t a viable option.

Some states (Wisconsin, Lousiana) allow employers to restrict or prohibit employee access to certain internet sites while using an electronic communications device (computer, tablet, PDA, smartphone) supplied or paid for in whole or in part by the employer, or while using the employer’s network or other resources. Of course, employees should always use caution in conducting any personal business on an employer-provided device or while on the employer’s computer network.

Wisconsin and Louisiana also permit employers to request or require an employee to disclose the employee’s personal e-mail address. The Louisiana law explicitly states that the employer may request the employee’s personal e-mail address to facilitate communication in the event the employer’s e-mail system fails. The Wisconsin law doesn’t contain any such limitation.

Tennessee prohibits employers from requiring employees or applicants to add the employer to the employee’s or applicant’s list of contacts associated with a social media account. Tennessee, Oklahoma, and California also prohibit employers from requiring employees or applicants to access a social media account in the presence of the employer, such that the employer can observe the contents of the account.

What are the takeaways from this review? For employees, there are two. First, in a growing number of states, employees and applicants have the legal right to refuse employer requests regarding access to social media accounts. Second, employees and applicants need to be cautious about using employer-provided (or paid for) devices or networks to access social media.

For employers, the first takeaway is essentially the same: in 16 states, the employer cannot request or require employees or applicants to provide access to his or her social media accounts. The number of states that will prohibit such a practice is likely to grow, and quickly. Second, an employer should determine what obligations apply in its state, and provide training and guidance to human resources personnel and managers. For employers with operations in more than one state, they must determine what obligations apply in each state, and decide whether to apply multiple standards tailored to each state, or one standard that covers all operations. Finally, employers in states that do not yet have such legislation should consider whether to get ahead of the trend by setting policies now restricting questions about access to social media.

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