A New York law recently went into effect significantly limiting employers’ ability to make inquiries regarding employees’ personal social media accounts.

Specifically, the new law makes it unlawful for an employer to request, require or coerce any employee or job applicant to:

1. disclose any username and password, password or other authentication information for accessing a personal account through an electronic device[1];
2. allow the employer to access the employee's or applicant’s personal account in the presence of the employer; or
3. reproduce pictures, videos or other information contained within a personal account obtained by the foregoing means.

A “personal account” under the law is an account or profile on an electronic medium where users may create, share and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, instant messages or internet website profiles or locations that is used by an employee or an applicant exclusively for personal purposes.

New York employers are also prohibited from discharging, disciplining or otherwise penalizing an employee (or threatening to do the same) based on their refusal to disclose such information. They also may not fail or refuse to hire any applicant because of the applicant's refusal to disclose such information.

Employer Protections Preserved

However, it is important to note that several important employer rights and protections are preserved under this law. Specifically, employers may:

• require an employee to disclose any username, password or other means for accessing nonpersonal accounts that provide access to the employer's internal computer or information systems;[2]
• restrict or prohibit employees from accessing certain websites while using the employer's network;
• request or require an employee to disclose login information for an account provided by the employer for business purposes so long as the employee was provided prior notice of the employer's right to do so;
• request or require an employee to disclose login information to an account known to the employer to be used for business purposes (even if not provided by the employer);
• access an electronic device, or restrict employees’ access to certain websites on an electronic device, that is paid for in whole or in part by the employer – so long as the device was provided on the condition that the employer could access it, and the employee was provided prior notice of and explicitly agreed to such conditions – except that an employer is still prohibited from accessing an employee’s personal accounts on such devices;
• obtain and provide access to an employee's personal accounts to comply with a court order;
• act in compliance with any duty the employer has to screen employees or applicants prior to hire or to monitor or retain employee communications as established under federal law or by a self-regulatory organization;
• review or access publicly available information or information voluntarily provided by the employee (or a client or other third party related to an employee), for example, in connection with a report of alleged misconduct; and
• raise as an affirmative defense to an action under the statute that the employer’s actions were required under federal, state or local law.

The statute does not apply to law enforcement agencies, fire departments or a department of corrections and community supervision.

The new law is an opportunity for employers to review their social media, electronic devices and computer policies and practices, and consult with counsel regarding necessary changes to ensure compliance with this new law. Employers also can coordinate any potential compliance changes with employees and external stakeholders responsible for hiring and screening employees and job applicants.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. 

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