Question of the Month

February 2017

Question
Does your state/province allow employers to force employees and applicants to turn over access to their social media accounts?
Answer from North Carolina

This practice is not prohibited, but we recommend against it.

For more information please contact Steve Dunn at steve.dunn@vradlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Texas

To our knowledge, no. In the context of litigation, it would depend on the allegations and the facts of the case as to what is discoverable. Ownership can also be an issue.

For more information please contact Stephen Key at skey@keyharrington.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Hawaii

Hawaii does not have a law that prohibits this.

For more information please contact Sarah Wang at SWang@marrjones.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Ohio

There is currently no law in Ohio about this.

For more information please contact Emily Gelhaus at ejg@drgfirm.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Maryland

No. The Internet and Electronic Account Privacy Protection Act prohibits all Maryland employers from requiring employees or applicants to turn over passwords needed to access private websites, including those used for social media sites. Md. Code Lab. & Emp. Section 3-712.

For more information please contact Fiona Ong at fwo@shawe.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from California

No. Employers may not require or request employees and job applicants to (1) disclose a username or password in order to access personal social media, (2) access personal social media in the presence of the employer, or (3) divulge personal social media, unless subject to an exception. Employers may request an employee to divulge personal social media reasonably believed to be relevant to an investigation of an employee's misconduct or unlawful activity, provided that the social media is used solely for purposes of that investigation or a related proceeding. Employers may not discharge, discipline, threaten to discipline or otherwise retaliate against an employee or applicant for refusing to comply with an employer's request that violates this law. Cal. Lab. Code §980.

For more information please contact David Wimmer at dwimmer@swerdlowlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Nevada

No. Under NRS 316.135, employers cannot “[d]irectly or indirectly, require, request, suggest or cause any employee or prospective employee to disclose the user name, password or any other information that provides access to his or her personal social media account.” They also cannot retaliate against someone who refuses to comply with a request. The statute does not provide any exceptions when it comes to personal social media accounts.

For more information please contact Gregg Kamer at gkamer@kzalaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Pennsylvania

Pennsylvania has not yet adopted a law restricting employers from requiring employees to turn over usernames and passwords for their social media accounts. A bill that would provide such protections has been introduced in the State House of Representatives.

For more information please contact John Ellis at jellis@ufberglaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from New York

There are currently no statutory provisions that would prevent an employer from doing so. New York has introduced proposed legislation that would prohibit an employer from requesting or requiring job applicants or employees to disclose their user name or login information, including passwords, for their personal electronic communication accounts (such as personal social media accounts) as a condition of hiring or employment status, or for use in disciplinary actions. This legislation is currently still pending.

For more information please contact Philip Repash at prepash@cfk-law.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Massachusetts

Currently Massachusetts has no laws prohibiting or authorizing the practice specifically. A proposed bill would prohibit employers from (1) requesting or requiring an applicant or employee to provide his or her user name and password to any personal social media account; or (2) requiring the applicant or employee to access such a personal online account in the presence of the employer, or (3) requiring the applicant or employee to add anyone in particular to his or her list of contacts on the social media account (for example, requiring the employee to add as a "friend" his or her manager on Facebook); or (4) taking any adverse action against an applicant or employee for refusing to do any of the above. The proposed law would not apply to any account or service provided by the employer itself or that the employee uses for the employer's business purposes, nor would it restrict the employer's right to promulgate and maintain workplace policies regarding the use of employer electronic equipment.

For more information please contact Susan Fentin at sfentin@skoler-abbott.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Connecticut

Currently Connecticut has no laws prohibiting or authorizing the practice specifically. A proposed bill would prohibit employers from (1) requesting or requiring an applicant or employee to provide his or her user name and password to any personal online account, which includes personal email and social media accounts, (2) requiring the applicant or employee to access such a personal online account in the presence of the employer, or (3) discriminating or retaliating against an applicant or employee who refuses to provide such information, refuses to access his or her account in the employer's presence, or files a complaint related to the employer's violation of the proposed law. Two exceptions to this law would be that the employer can require the user name and password of any account or service provided by the employer itself or that the employee uses for the employer's business purposes, and also to access any electronic communications device supplied or paid for, in whole or in part, by the employer.

For more information please contact Susan Fentin at sfentin@skoler-abbott.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Minnesota

Minnesota does not have a law prohibiting employers from requiring access to employee or applicant social media accounts as a condition of employment.

For more information please contact Doug Seaton at dseaton@seatonlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Washington

No. In 2013, Washington enacted legislation that protects employees and job applicants from being forced to provide their user names and/or passwords for social media accounts. RCW 49.44.200. The law prohibits Washington employers from requesting, requiring or otherwise coercing employees or applicants to: (i) provide their log-in information; (ii) access their accounts in front of their employers; (iii) add their employer or anyone else to their list of contacts; or (d) change their privacy settings to allow their accounts to be viewed by their employer. The law also prohibits retaliating against an employee for refusing to comply with any of the above directives. The law contains an exception for circumstances where an employer is conducting an investigation of work-related misconduct, such as an employee transferring the employer’s proprietary, confidential, or financial information to a social media account; however, the employer still may not require the employee to provide his or her log-in information. The law also contains additional exceptions for circumstances where: (i) an employer inadvertently learns of an employee’s log-in information, such as through its own electronic monitoring, as long as the employer does not use the log-in information to actually access the employee’s account; (ii) the account is paid for by the employer; or (iii) where the log-in credentials are for an intra-corporate social-media platform.

For more information please contact Ken Diamond at ken@winterbauerdiamond.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Illinois

The Illinois Right To Privacy in the Workplace Act prohibits employers from demanding access, including requesting or requiring an employee or applicant to provide passwords, to an employee or applicant’s social media accounts. The sole exception to this prohibition permits employers to request passwords and information from an employee or applicant’s professional account.

For more information please contact Michael Warner at maw@franczek.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Oregon

Oregon law prevents employers from compelling employees or applicants to give the employer access to their social media (except in very narrow circumstances related to workplace investigations). The applicable statute is ORS 659A.330, which went into effect on January 1, 2014 (following the passage of HB 2654B).

The statute defines “social media” as:
 

“… an electronic medium that allows users to create, share and view user-generated content, including, but not limited to, uploading or downloading videos, still photographs, blogs, video blogs, podcasts, instant messages, electronic mail or Internet website profiles or locations.”


Since January 1, 2014, it has been an unlawful employment practice for employers to take a number of actions related to the social media of employees and applicants.

Specifically, it is unlawful for an employer to require or request an employee or applicant to provide access to a personal social media account through the employee’s log-in or “other means.” It also is unlawful for an employer to compel an employee or applicant to add the employer to his/her list of contacts for a social media account or to access his/her personal social media account in the employer’s presence.

An employer also violates the law if it takes or threatens adverse employment action against an employee who refuses to comply with any employer request or directive prohibited by the new law. Similarly, the new law prohibits an employer from declining to hire an applicant because the applicant refuses to comply with any employer request or directive prohibited by the new law.

The protection for employee’s social media privacy only applies to personal social media accounts. An employer may require an employee to provide the log-in information for the employer’s social media account or for an account provided to the employee by the employer. The law also protects employers from any potential liability (for example, in a suit for negligent hiring) for failure to request or require an applicant or employee’s log-in information for a personal social media account. Further, while an employer would not violate the law if it inadvertently obtained an employee’s log-in information, the employer may not use that information to access an employee’s personal social media account.

The new law also provides that a number of actions are not unlawful. For example, it permits an employer to conduct an investigation of misconduct based on receipt of specific information about employee activity on a personal social media account. While the employer may not compel employees to provide their log-in information, it may require an employee to share content from a personal social media account or site if the information was “reported” to the employer and is “necessary for the employer to make factual determination about the matter.”

Additionally, it is not unlawful for an employer to access information available to the public, including information that is accessible through an online account on the social media site. Despite this permission, employers ought to proceed with caution until BOLI or the courts provide guidance.

Finally, it is not unlawful for an employer to act in compliance with other state and federal laws or regulations. An employer has the right to protect its reputation, and in some cases has a duty to protect other employees from harassment. In so doing, though, the employer is increasingly likely to run into social media issues. Knowing when to investigate personal social media use and when to stay away is a complex subject with many competing interests. An awareness of the potential issues is critical, and careful planning is the best defense against liability.

For more information please contact Dan Rowan at drowan@bullardlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Kentucky

There is no express prohibition against making such a demand in Kentucky.

For more information please contact Kevin Smith at wks@smithandsmithattorneys.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

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