Three More States Hop on the Social Media Legislation Bandwagon

by Orrick - Global Employment Law Group
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So far in 2013, three states (Arkansas, New Mexico and Utah) have passed new social media legislation restricting employer access to employees and job applicants’ personal social media accounts. We previously posted about social media legislation in California and other states here and here.

Arkansas

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

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.

Utah

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.

Recommendations for Employers

Employers in Arkansas, New Mexico and Utah, as well as those in California, Illinois, Maryland and Michigan, should review their policies and practices to ensure that they are not asking prospective and, in most cases, current employees for login information for their personal social media accounts. In addition to potentially violating state social media legislation, they may also increase their exposure under state and federal anti-discrimination laws if employers view information regarding current or prospective employees’ race, national origin, religion, age, disability, or other protected status information.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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