Following in the footsteps of several other states including Arkansas, Colorado, Illinois, Maine, Nevada, New Jersey, New Mexico, Oregon, Utah, Washington, and Wisconsin, Louisiana recently enacted the Personal Online Account Privacy Protection Act. The Act, effective immediately, prohibits employers from requesting or requiring access to the personal online accounts of applicants or employees. The Act applies to virtually all private and state or local government employers, regardless of size, that are doing business in Louisiana.
Under the Act, a protected "personal online account" is defined as an account used exclusively for personal communications unrelated to any business purpose of the employer or educational institution. Examples of personal online accounts that would likely be protected include those on very popular sites, such as Facebook, Twitter, and Instagram. The Act excludes accounts that the employer or educational institution created, services, or uses for business or educational purposes.
While the Act prohibits employers from requesting and requiring passwords to these accounts, it still grants employers a lot of latitude in using, restricting, monitoring online tools in the workplace. For instance, employers can still obtain an applicant's or employee's email address, view or access information about an employee that is available in the public domain, and screen applicants pursuant to a law, rule or regulation. With regard to accounts, devices and systems that the employer owns, it can request or require access to that device and request or require access to accounts used for the employer's business purposes.
The Act also does not restrict an employer from creating rules related to personal online accounts in the workplace. For instance, an employer can still restrict or ban an employee's or applicant's access to certain websites while using the employer's electronic communications device; it can still reprimand or discharge an employee for sending confidential or proprietary information or financial data to his or her personal online account without permission; and it can still conduct an investigation or require an employee's cooperation in an investigation where there is specific information on an employee's personal online account. The scope of the Act is broad-reaching in that it applies to educational institutions and prohibits them from requesting or requiring the same information from students or prospective students.
While the Act is specific about the behavior that it prohibits, it does not provide a penalty for a violation of the law. Furthermore, it does not provide a right of action to a party to pursue a claim if it is violated. Despite that, employers should take note that these laws are emerging as a trend across the U.S. The best practice for employers is to follow the guidelines in the Personal Online Account Privacy Protection Act. Doing so is the first line of defense to ensure that the employer does not commit an actionable violation of an employee's privacy rights under another law.