By Jessica Mendelson and Robert Milligan
Social media legislation restricting access to personal social media accounts has been a hot topic in recent months, and as 2013 progresses, more and more states seem poised to pass such legislation. Here’s a roundup of some of the more recent social media legislation passed in Utah, New Mexico, and Arkansas:
With the passage of the Internet Employment Privacy Act (IEPA) last month, Utah became the fifth state in the country to pass legislation restricting employers’ access to their employees’ social media accounts. Under the terms of the legislation, neither public nor private employers can “ask an employee or job applicant to disclose a username and password or a password that allows access to the employee’s or applicant’s personal Internet account” or retaliate against an employee or job applicant who fails to disclose such information. However, employers can still request the disclosure of account information to gain access to the employer’s “electronic communications device, account or service.” Employers can also investigate employee misconduct involving an employee’s personal email account, restrict or prohibit access to certain website on the employer’s devices or networks, and block certain access and communications on the employer’s device or network. Employers are also still entitled to screen employees and job applicants. The law also provides penalties for failure to comply: employees and job applicants are entitled to up to $500 in damages from employers for violations of the law.
With the passage of SB 371, New Mexico joined a handful of others states to impose restrictions on employers’ access to social networking accounts. Under this law, which was signed by Governor Susana Martinez on April 5, an employer is prohibited from requesting or demanding access to a job applicant’s social networking account. However, unlike similar laws passed in other states, such as California, Illinois, Maryland, Michigan, and Utah, New Mexico’s law does not prohibit employers from accessing the accounts of current employees. Furthermore, the law does not prohibit employers from instituting workplace restrictions on access to the internet or social media websites, nor does it restrict an employer’s right to view information found in the public domain.
The legislation prohibits an employer from requesting or demanding a job applicant divulge a password to allow access to his or her social networking accounts or from demanding access to such accounts in any other manner. There are, however, exceptions to this rule. Employers can still monitor the usage of company electronic equipment or email without requesting or requiring a prospective employee to provide a password.
New Mexico’s law does not contain a remedial plan for damages or penalties. The New Mexico law will take effect on June 14, 2013.
On April 22, 2013, Arkansas’ governor signed Act 1480, a law which prohibits an employer from requiring or requesting a current or prospective employee from disclosing his or her username or password for a social media account to provide access to the contents. However, the Act does not regulate the following types of social media accounts: (1) accounts opened by employees at their employer’s request, (2) accounts provided to an employee by an employer, (3) accounts setup on behalf of an employer, or (4) accounts setup to impersonate an employer. Employers are prohibited from requesting, requiring, suggesting, or causing current or prospective employees to disclose their usernames and passwords, adding employees or supervisors to their social media contacts, or changing privacy settings. Employers are not liable for inadvertently receiving such information, and employers are entitled to obtain such information if it is reasonably believed to be relevant to a formal investigation of allegations of the employee’s breach of federal, state, or local laws or the employer’s written policies.
As of April 2013, thirty-five states were considering (or had already introduced) social media legislation. States throughout the country are currently considering this hot topic, and we will likely see additional states pass similiar social media legislation before the year is out. Social media legislation has been submitted to Governor Christie in New Jersey for signature. We have previously provided our critique of this type of legislation, and we will continue to notify you of future developments.