Rhode Island Enacts Employee Social Media Privacy Legislation

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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Rhode Island has recently enacted legislation intended to protect job applicants’ and employees’ social media accounts and information. The new law prohibits employers from requiring job applicants or employees to disclose their social media passwords or from requiring applicants or employees to access their accounts while in their employer’s presence. The law further prohibits an employer from requiring an applicant or employee to add anyone, including the employer, as a contact to the applicant’s or employee’s social media account so that the employer might have access to otherwise private social media content.

The Rhode Island statute applies to any electronic service or account as well as non-public electronic content including videos, photographs, blogs, emails, text messages, and online profiles. The law specifically exempts accounts created by or intended primarily for the benefit of the employer such as work-related email or data storage accounts.

The law includes another important exception—employees may be required to provide their employers with access to social media accounts and content when reasonably necessary to investigate workplace misconduct or to address a work-related violation of any statute or regulation. The law does not elaborate on which sets of circumstances make it reasonably necessary for an employer to demand such access, but often an employee’s social media account can be a helpful source of information when investigating certain workplace issues such as harassment and unfair competition. The law also exempts certain social media accounts that are subject to regulation by private and public financial or insurance regulatory authorities.

By passing this legislation, Rhode Island joins seven other states that have enacted similar provisions—Illinois, Louisiana, Maine, New Jersey, Oklahoma, Tennessee, and Wisconsin. And, similar bills are now pending in the legislatures of at least 28 other states. This flurry of state legislation likely has been due to the overwhelmingly negative reaction against employers that have required applicants to provide social media passwords or other access to social media content during interviews and against employers that have subsequently pressured employees to provide access to their social media content. Employers have argued that access to social media information is warranted to protect against theft of trade secrets and or to prevent or curtail objectionable workplace misconduct. However, privacy advocates have argued that such inquiries and requirements go beyond a reasonable employer request.

The new law became effective upon passage. Employers should be cautious when asking an applicant or employee for access to social media content and ensure that the circumstances surrounding the request are within the exceptions enumerated in the new law. Employees who claim to have been harmed by an employer’s violation of the law may file suit for damages, attorneys’ fees, costs, and declaratory and injunctive relief.

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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