Accessing an Employee’s Social Media Account? A Patchwork of State Laws

29 September 2015 Labor & Employment Law Perspectives Blog
Author(s): Felicia S. O'Connor

The water cooler, it seems, is a thing of the past. Or at least the actual physical water cooler is. These days, many of the office conversations take place online. Employees air their grievances, connect with each other, and catch up on each other’s lives through social media. As technology plays a bigger role in our lives and simple statements that were previously private now become public, employers have an increased interest in what their employees are doing and saying online. Are they disparaging the company? Are they harassing other employees? Are they divulging company secrets? While these are all valid questions that an employer may want answered, employers need to tread carefully when developing policies regarding their employees’ use of social media. As the technological landscape and employee behavior is changing, so too are the laws governing permissible employer actions in relation to social media.

It is a temping proposition for employers to want access to their employees’ social media accounts. There are some valid reasons that an employer may want and need to know about their workforce’s social media activities. However, there is a growing population of states that have prohibited employers from asking employees for their social media account information. Most of these state laws, where they exist, prohibit an employer from requiring, or requesting the employee’s social media username and password. Many, including California, Connecticut, Oregon and others also prohibit the employer from asking the employee to access the social media account while the employer is present. Still others, like New Hampshire, Maine and Delaware, prohibit the employer from asking or requiring employees to add the employer as a friend or to invite the employer to a group that gives the company access to non-public information. In addition to prohibitions on requesting or requiring employee social media account access, nearly all these laws also have an anti-retaliation provision prohibiting employers from taking adverse action against an employee who refuses to divulge his or her social media account information.

Nevertheless, in a nod to the legitimate reasons an employer may have to access information an employee has posted on social media, many of these laws have exceptions for formal internal investigations of employee violations of law or company policy. The laws also frequently make exceptions for social media accounts created by the employee on behalf of the employer, at the request of the employer and/or that are used for company purposes. Many of the laws also specifically state that a company retains the right to review any publicly available information that an employee has posted on social media, an important exception in light of the fact that many employers research applicants online prior to hiring. As long as all of the information is publicly available, this practice is still permitted under the laws discussed here.

Because so much employee activity now occurs online, employers are wise to stay knowledgeable not only on various new technologies, but also the developing law surrounding protecting the privacy of employees’ online lives. States continue to add these types of laws – the latest being a Connecticut law prohibiting employer requests for social media account access that goes into effect in October of this year. These laws, while similar, are not all alike, and not all states have them. Employers, especially those with employees in multiple states, should familiarize themselves with the rules governing the areas in which they operate because employee use of social media is likely to only increase as time goes on.

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