Thursday, April 10, 2014

Wisconsin Social Media Protection Act

Wisconsin Governor Scott Walker signed the Wisconsin Social Media Protection Act (2013 Wisconsin Act 208) into law this past week, giving employees in Wisconsin more privacy in the workplace, though the legislation provides several exceptions for employers. 
 
The new law prohibits employers from doing the following:
 
1. Request or require 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.

2. Discharge or otherwise discriminate against an employee for exercising the right under subd. 1. to refuse to disclose access information for, grant access to, or allow observation of the employee’s personal Internet account, opposing a practice prohibited under subd. 1., filing a complaint or attempting to enforce any right under subd. 1., or testifying or assisting in any action or proceeding to enforce any right under subd. 1.
 
3. Refuse to hire an applicant for employment because the applicant refused to disclose access information for, grant access to, or allow observation of the applicant’s personal Internet account.
 
However, as stated above, the law does provide for several exceptions which does allow an employer to obtain access to an employee's social media or terminate an employee's employment for failing to provide access.  Those exceptions are in the following situations:
 
1. Requesting or requiring an employee to disclose access information to the employer in order for the employer to gain access to or operate an electronic communications device supplied or paid for in whole or in part by the employer or in order for the employer to gain access to an account or service provided by the employer, obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes.

2. Discharging or disciplining an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account without the employer’s authorization.

3. Subject to this subdivision, conducting an investigation or requiring an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account, if the employer has reasonable cause to believe that such a transfer has occurred, or of any other alleged employment−related misconduct, violation of the law, or violation of the employer’s work rules as specified in an employee handbook, if the employer has reasonable cause to believe that activity on the employee’s personal Internet account relating to that misconduct or violation has occurred. In conducting an investigation or requiring an employee to cooperate in an investigation under this subdivision, an employer may require an employee to grant access to or allow observation of the employee’s personal Internet account, but may not require the employee to disclose access information for that account.
 
4. Restricting or prohibiting an employee’s access to certain Internet sites while using an electronic communications device supplied or paid for in whole or in part by the employer or while using the employer’s network or other resources.
 
5. Complying with a duty to screen applicants for employment prior to hiring or a duty to monitor or retain employee communications that is established under state or federal laws, rules, or regulations or the rules of a self
regulatory organization, as defined in 15 USC 78c (a)(26).
 
6. 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.

7. Requesting or requiring an employee to disclose the employee’s personal electronic mail address.
 
Then, interestingly enough, the legislation states that this law does not apply to those in the financial services industry who use the account or device to conduct business that is subject to regulation and it also does not apply to situations where the employer "inadvertently" (yes, the statute uses the term "inadvertently") accesses an employee's personal account through a system the employer pays for to monitor the network, " so long as the employer does not use that access information to access the employee's personal Internet account." 
 
The law also provides protections for students and prospective students in the educational realm from having to disclose the same, as well as tenants in the landlord-tenant realm--both of which have exceptions as well. 
 
Enforcement will be handled by the Equal Rights Division ("ERD"), which is the Wisconsin administrative agency typically associated with enforcing the Wisconsin Fair Employment Act ("WFEA").  However, the penalties for a violation found under this Act are rather weak as a person found to have violated this law "may be required to forfeit not more than $1,000."  The word "may" is emphasized because it's not mandatory (the word "shall" is used to require such a fine).  If an employee is discharged, or otherwise discriminated against in violation of this law, or an applicant not hired in violation of the law or a student is expelled, suspended or otherwise penalized in violation of this law, a complaint may be filed and it will be handled like a discrimination complaint with the ERD with the remedy being the same remedy afforded in discrimination cases:  make-whole.  The same for violations in the landlord-tenant relationship if a violation is found.
 
As is the case with any new law, it'll be interesting to see this law enforced and litigated.  Either way, it is good to see Wisconsin keep ahead of trends in the law as technology always presents unique challenges for the law.  As of last year, only 13 states had similar laws with only another 25 states merely considering such legislation.
 

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