Data Points: Privacy & Data Security Blog

In just two years, social media password protection has gone from a privacy advocate’s dream to an employer’s harsh reality in many states.  Maryland became the first state (in 2012) to enact legislation that prevented employers from requesting the user names or passwords to an employee’s or applicant’s personal social media accounts.  Two states quickly joined Maryland in 2012 by passing similar password privacy laws, and nine more states added privacy protections in 2013.

So far in 2014, six states – Louisiana, New Hampshire, Oklahoma, Rhode Island, Tennessee and Wisconsin – have enacted password privacy laws, leaving multistate employers with a patchwork quilt of regulations from coast to coast.  Maine is close by, having authorized a study of social media privacy in the workplace.  Additionally, while federal password protection law languishes in Congress, 18 other states have been in various stages of considering their own privacy laws.

Similarities Among States

As more states hop on the social medial password privacy bandwagon, some trends are emerging.  Most states include online email accounts within their statutes’ protections, if the email account is used exclusively for personal reasons.  Most states not only prohibit requiring or requesting an employee or applicant to disclose their private  user names and passwords, but also prohibit end runs around this prohibition, such as requiring or requesting an employee to access a personal social media account in the presence of the employer or its representative.

In addition, more states, including New Hampshire, Tennessee and Rhode Island, are preventing employers from requesting or requiring the employee or job applicant to add or “friend” the employer on any personal social media account.  A number of states, including Rhode Island and Oklahoma, give individuals the right to sue employers for violation of the statute.

The privacy protections for employees and applicants, however, are not absolute, and employers are not without their own protections in many of the regulations.  For example, most states allow employers to request user names, passwords and even disclosure of content for an employee’s social media account if the employer has information suggesting that data on the account will show the employee’s misconduct in the workplace or that the employee has misappropriated the employer’s confidential or proprietary information.

Considerations for Employers

Despite similarities, the statutes do vary from state to state, and employers must be careful not to assume that compliance with the social media password protection statute in one state suffices to ensure compliance in others.  There are, however, some general takeaways:

• Don’t seek to access the private portions of an applicant’s social media page unless the law requires your company to do so. The statutes’ exceptions for investigations apply, not surprisingly, to workplace issues.  Under these statutes, it is hard for an employer to justify accessing private portions of an applicant’s social media account.
• Prohibit – in writing – employees from using personal email accounts for business reasons. Aside from being a good business practice, the inclusion of “email” in the definition of protected accounts makes it hard to access an employee’s personal email..  In general, employers will need to rely on evidence that the employee’s personal email accounts harbor employer confidential or proprietary information or evidence of workplace misconduct.  Violation of a written policy prohibiting use of personal email for business purposes might provide the requisite “misconduct.”
• Don’t try to circumvent the social media password protection statutes by using creative means to obtain the employee’s or applicant’s password. Most statutes prohibit alternative means of accessing an employee’s or applicant’s account, and few if any courts will be compassionate toward an employer who engages in deception or trickery to obtain access to the accounts that the statutes are designed to protect.
• Find out whether the states in which you have employees have social media password protection laws and understand what those laws require. Companies with employees in multiple states should carefully review each state’s applicable law.
• If the laws in your state allow access to an employee’s or applicant’s account, consider other risks before accessing. For example, the company may learn that the employee or applicant is in a protected class, such as  – a certain religion, sexual orientation or engaging in lawful use of lawful products.  Any adverse employment action against the employee or applicant after obtaining that information may look discriminatory.

This rapidly developing area of employee privacy online will continue to challenge businesses for the foreseeable future.  Please don’t hesitate to contact our Privacy and Data Security practice if you have questions about your employee social media policies or would like to further discuss the implications these password protection laws may have on your business.