Thursday, April 9, 2015

Virginia Becomes 19th State to Pass Workplace Social Media Password Privacy Law

In a continuing trend addressing social media in the workplace, Virginia has become the 19th state since 2012 when Maryland was the first state, to pass legislation protecting employees against employers seeking to gain entry to an applicant's or current employee's social media content.  More specifically, the law prohibits employers in Virginia from requiring, requesting, or causing a current or prospective employee to disclose the username and password to the individual’s social media account.  Additionally, the law also prohibits employers from requiring an employee to add another employee, a supervisor, or an administrator to the list or contacts associated with the individual’s social media account or changing the privacy settings.  

Wisconsin does provide similar protection for its applicants and employees (and also applies to educational institutions and landlords) pursuant to Wis. Stat. section 995.55 and allows for violations to be filed with the Equal Rights Division of the Wisconsin Department of Workforce Development  (Wis. Stat. section 106.54(10)).  

For more of a lay explanation, in Wisconsin, it is now illegal for a Wisconsin employer to request or require that an employee or applicant provide the employer with access to his/her personal Internet account.  More specifically, the law prohibits the following:

  1. 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.

  2. Discharging or otherwise discriminating against an employee for refusing to disclose access information for, grant access to, or allow observation of the employee’s personal Internet account, opposing a prohibited practice, filing a complaint or attempting to enforce any such right, or testifying or assisting in any action or proceeding to enforce any such right.

  3. Refusing 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.
Similar to Virginia's law, Wisconsin's law does NOT prohibit the following:

  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. 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.

  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.

  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.
The Wisconsin law also does not apply to a personal Internet account or an electronic communications device of an employee engaged in providing financial services, who uses the account or device to conduct the business of an employer that is subject to the content, supervision, and retention requirements imposed by federal securities laws and regulations or by the rules of a self-regulatory organization. Wis. Stat. § 995.55(2)(c)

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