As first discussed in McDermott Will & Emery’s Privacy and Data Protection 2013 Year In Review, state legislatures are enacting laws limiting employers’ ability to access the social media accounts of their employees. Thus far in 2014, four more states – Louisiana, Oklahoma, Tennessee and Wisconsin – have enacted social media legislation, bringing the total number of states with such legislation to 16.
How State Social Media Laws Effect Employers
Generally, state social media laws bar employers from requiring or requesting that an employee or applicant provide log-in credentials for his/her personal social media account. Some of these state social media laws also prohibit an employer from requiring an employee to add another employee or supervisor to a social media account “friends” or contacts list or to access personal social media accounts in the employer’s presence. Many of the state social media laws also prohibit employers from basing adverse employment action on an employee’s refusal to comply with an employer’s request for social media account access.
While these laws offer employees added protection with respect to their personal social media accounts, most of the laws feature important carve-outs. Among other exceptions, most state social media laws allow employers to: access publicly-available social media about employees, restrict employees’ access to social media during work hours and conduct certain types of employment-related investigations that may involve an employee’s social media account(s).
Notably, all four of the recently-enacted laws allow employers to monitor the social media activity of employees when employees access their social media accounts through employer-provided IT systems.
Since the terms of state social media laws vary, employers should consider establishing and following basic guidelines to ensure compliance with the myriad laws. Key steps are:
- Updating employer policies to clarify state-specific restrictions related to employee access to personal social media accounts through employer-provided information systems; and
- Providing training to managers, Human Resources and IT professionals about the conduct prohibited by the different state social media laws.