On April 16th, Scott Schaefers spoke with LexBlog’s Colin O’Keefe in a live online interview about what employers need to know about the social networking privacy legislation passed by thirteen states in the last two years. Scott discussed Seyfarth’s soon-to-be-published survey of that legislation, as well as some ideas of what employers can do to protect its proprietary assets. Those interested in more detail can attend our upcoming April 24th webinar, in which we will present the various features of the new laws, as well as what to expect in the courts.
Though the specific components of the laws vary from state to state, generally speaking they prohibit employers from requiring or requesting employees to provide access to their personal social networking accounts (Facebook, LinkedIn, Twitter, etc.). The penalties for violations also differ depending on the state, and range from mere slaps on the wrist (i.e. New Jersey) to much heavier civil liability, including payment of employees’ attorneys’ fees (i.e. Oregon). Employers enjoy a number of exemptions and immunities under many of the statutes, including the right to demand access for employer-related accounts, to demand access upon reasonable suspicion of information theft, and to conduct appropriate network and system monitoring.
Some gaps in the new laws will have to be filled in by the courts, including how the laws will impact employers’ rights to its trade secrets; the discoverability of social networking account content in litigation now that the content has been given an added measure of privacy; and which state’s law will apply in disputes involving multi-state employers. Employers are encouraged to consult with counsel versed in the new legislation to anticipate the effect on their businesses.