Efforts to Restrict Employer Access to Social Media Passwords Pick Up Steam
Legislative efforts to prohibit employers and educational institutions from demanding social media passwords from applicants and employees picked up steam as California became the third state to pass such a law on Thursday, September 27, 2012. California joins Maryland and Illinois as states making this prohibition law, though none of the statutes have yet to go into effect.
The California statute prohibits employers asking for account passwords and from taking any adverse action, including discharge or refusal to hire, against an employee who refuses access to a social media account. The language of the statute appears to reach demands by employers to even review non-public social media posts without a password, such as an “over the shoulder” review at an employee’s desk, but the full contours of the law won’t be known until it is implemented.
In an interesting twist, the California law does not apply to devices issued by employers. So, if an employee accesses a personal social media account such as Facebook or Twitter on an employer-issued device. Thus, an employee who accesses a personal social media account on an employer-issued phone, tablet or laptop might be susceptible to a password demand.
In announcing the passage of the law – via social media, no less – Governor Brown of California emphasized that the law does not impact on employers’ existing rights and obligations to investigate workplace misconduct. For instance, if an employer has knowledge that an employee is harassing another employee via social media, the employer can’t use the new law as a shield to refuse to act. Employers must still abide by all workplace discrimination laws and provide a safe work environment for their employees.
At least twelve other states are considering similar laws, and similar bills have been introduced in both the U.S. House and Senate. Employers across the nation need to be aware of this trend.
If you have any questions regarding potential social privacy laws in your jurisdiction, give us a call.
Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or firstname.lastname@example.org.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
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