Question of the Month

July 2018

Question
What are your state’s current laws for discipline regarding employee social media activity?
Answer from Alabama

There is no applicable state law in Alabama.

For more information please contact Michael Thompson at mthompson@lehrmiddlebrooks.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

California Labor Code Section 980 prohibits prohibit an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media.  Moreover, an employer is prohibited from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions.

For more information please contact Michael Foster at mfoster@fosteremploymentlaw.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 Florida

No state law in Florida.

For more information please contact Wayne Helsby at whelsby@anblaw.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 Georgia

Georgia has no state laws regarding adverse employment actions based on social media activity of employees or applicants.

For more information please contact Doug Duerr at duerr@elarbeethompson.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

Currently, no Hawaii state law or administrative regulation specifically addresses this issue.

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 Kentucky

There are no current laws in Kentucky.

For more information please contact Oliver Rutherford at obr@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.

Answer from Maryland

Although Maryland prohibits employers from requiring employees to provide passwords and login information for personal social media accounts, there is nothing that prohibits employers from taking action based on social media activity that is publicly available or legally obtained.

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 Massachusetts

Massachusetts does not have laws that address discipline for social media activity.

For more information please contact Marylou Fabbo at MFabbo@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

In Minnesota, an employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in the use or enjoyment of lawful consumable products, if the use takes place off employer premises during nonworking hours.  Minn. Stat. § 181.938, subd 2.  Therefore, some updates and pictures on social media sites that reflect drinking, smoking and other lawful activities may reflect poor judgment by an employee, but may not be grounds for refusing employment or taking disciplinary action.

A company must decide what its position is regarding social media use and where it stands relative to monitoring social media. The company’s position needs to be translated into a written policy and communicated to employees. Absent a policy, a company’s expectations would be unknown to employees and would create challenges in attempting to discipline an employee for his/her social media activities.

However, a social media policy should not be so sweeping that it prohibits protected activity.  For example, when employees use social media to communicate about work conditions, the National Labor Relations Act may protect such activities. 

For more information please contact Tom Revnew at TRevnew@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 Nevada

Under Nevada law, an employer may not require an employee or prospective employee to disclose any information that might grant the employer access to an individual’s personal social media accounts, such as a username or password. However, an employer may compel its employees to disclose information granting access to social media accounts, other than personal accounts, if it does so to access its “own internal computer or information system.”  See NRS 613.135.

For more information please contact Scott Abbott at sabbott@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 New York

While New York State law does not expressly protect social media activity, under  New York Labor Law Section 201-d, it is generally unlawful for any employer or employment agency to refuse to hire, employ, license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of an individual’s  recreational or political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal. “Recreational activities” include any “lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.” “Political activities” include (1) running for public office, (2) campaigning for a candidate for public office, or (3) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group.” The statute does not protect leisure time activity that creates a material conflict of interest with the employer's proprietary or business interests, among other exceptions.

For more information please contact Nick Bauer at NBauer@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 North Carolina

There are no such laws in North Carolina.

For more information please contact Bryan Adams at bryan.adams@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 Pennsylvania

Pennsylvania has no laws restricting discipline to employees for social media activity.  However, although Pennsylvania is an at-will state, traditional employment discrimination concerns and applicable public policy limitations must be considered in conjunction with discipline imposed on an employee for social networking activity.

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 Texas

There are no such laws in Texas.

For more information please contact John Freeman at jfreeman@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 Virginia

There are no statutes regarding disciplining employees for social media activity.  There is a recent statute that prohibits employers from requiring employees to provide access to their social media accounts. See Va. Code §40.1-28.7:5.   

For more information please contact Susan Carnell at scarnell@lorengercarnell.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

Where an employer has lawful access to an employee’s social media activity, there is no state law regulating discipline for that employee’s activity (assuming the discipline is not related to protected activity or another protected classification).  Washington does, however, prohibit employers from requesting employees’ social media login information or access to employee social media content except in certain situations.  RCW 49.44.200.  For instance, an employer can require an employee to share content (but not the password) from his/her social media account in connection with an investigation into work-related misconduct, unauthorized transfer of the employer’s proprietary information, etc.  

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 Wisconsin

Wis. Stat. Sec 995.55(2) is the only state law related to social media activity.  While it restricts an employer from requesting or requiring an employee or applicant for employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account, it does not prohibit an employer from viewing, accessing, or using information about an employee or applicant for employment that can be obtained without access information or that is available in the public domain. 

For more information please contact Laurie Petersen at LPetersen@lindner-marsack.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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