Under new laws, employers must provide information for unemployment insurance but largely cannot require employees or applicants to disclose personal social media accounts

On September 14, 2023, New York Governor Kathy Hochul signed two additional laws governing employer actions in New York State. Specifically, New York now further regulates the required employer notices regarding unemployment insurance and an employer's ability to ask employees and applicants for access to their social media accounts.

These new pieces of legislation come on the heels of other employment-related laws prohibiting captive audience speeches and creating criminal liability against New York employers for wage/hour violations.

1. Senate Bill S4878A (Unemployment Insurance Notification)

Effective November 13, 2023, New York employers will be required to provide written notice of unemployment eligibility to New York employees upon permanent or indefinite separation of employment, reduction in hours, temporary separation, and any other interruption in continued employment that results in total or partial unemployment. However, neither the terms "reduction in hours" nor "total or partial unemployment" are defined in the statute. And, the Department of Labor has not yet published the required form to comply with the law.

This law expands the scope of an employer's obligation to provide individuals with notice of eligibility for unemployment insurance by requiring notice upon a "reduction in hours" or "any other interruption in continued employment that results in total or partial unemployment." Previously, New York employers have been required to provide a Record of Employment form to individuals who quit, are laid off or are discharged.

Moving forward, employers should continue to comply with their obligations to provide individuals with the Record of Employment Form as part of normal offboarding materials.

DWT will continue to track guidance and regulations from the Department of Labor in advance of the effective date.

2. Senate Bill 2518A (Social Media Disclosures)

Many New York employers require individuals to provide access to personal social media accounts during the application process and during disciplinary investigations. This law would generally prohibit employers from requesting, requiring or coercing any employee or any applicant to:

• Disclose any username, password or other authentication information for accessing a personal account;
• Access the individual's personal account in the presence of the employer; or
• Reproduce in any manner photographs, video, or other information contained within a personal account.

A "personal account" is defined as "an account of 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." Accordingly, this law would apply to virtually all personal social media accounts held by employees and applicants.

Importantly, however, the law expressly permits the following actions:

• Requiring an employee to disclose any username, password or other means of accessing nonpersonal accounts that provides access to the employer's computer or information system.
• Requiring an employee to disclose access information to an account provided by the employer where such account is used for business purposes and the employee was provided prior notice of the employer's right to request or require such access information.
• Requiring an employee to disclose access information to an account known to an employer to be used for business purposes.
• Accessing an electronic communications device paid for in whole or in part by the employer where the provision of or payment for such device is conditioned on the employer's right to access such device and the employee was provided prior notice of and explicitly agreed to such conditions; provided, however, that the employer shall not be permitted to access any personal accounts on such device.
• Restricting or prohibiting an employee's access to certain websites while using an employer's network or while using an electronic communications device paid for in whole or in part by the employer where the provision of or payment for such device is conditioned on the employer's right to restrict such access and the employee was provided prior notice of and explicitly agreed to such conditions.
• Screening employees or applicants or monitoring employee communications as permitted by federal law or by a self-regulatory organization.
• Viewing, accessing or utilizing information about an employee or applicant that can be obtained without any required access information, that is available in the public domain, or for the purposes of obtaining reports of misconduct or investigating misconduct, photographs, video, messages, or other information that is voluntarily shared by an employee, client or other third party that the employee subject to such report or investigation has voluntarily given access to contained within such employee's personal account.
• Employer action necessary to comply with the requirements of any federal, state or local law, or court order.

Significantly, access shall not include an employee or applicant voluntarily adding an employer, agent of the employer, or employment agency to their list of contacts associated with the personal account. Thus, to the extent individuals at an employer are "friends" with an employee or applicant, those individuals reviewing the employee's or applicant's social media account is permitted under the new law.

The law becomes effective on March 12, 2024. Accordingly, employers have approximately six months to: (i) review their electronic communications policies; (ii) review and/or prepare their Bring Your Own Device policies; (iii) ensure that applications, job postings, interviewing and onboarding materials do not request information prohibited by this law; and (iv) train management and human resources professionals on the permissible scope of inquiries during a disciplinary investigation.

DWT will continue to track guidance and regulations from New York State in advance of the effective date.

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