As we previously reported, social media privacy has become the latest issue to be regulated by state legislation. Last week, Wisconsin jumped on the social media privacy bandwagon. On April 8, 2014, Wisconsin Governor Scott Walker signed legislation that in most cases prohibits employers, among others, from requesting or requiring passwords or other protected access to "Personal Internet Accounts" of current employees and applicants for employment.
What is a "Personal Internet Account"?
A "Personal Internet Account" is an Internet-based account that is created and used by an individual exclusively for purposes of personal communications. Examples of Personal Internet Accounts include Facebook and LinkedIn. The law, however, does not apply to a Personal Internet Account of an employee engaged in providing financial services who uses the account to conduct the business of an employer that is subject to requirements imposed by federal securities laws (e.g. content, supervision and retention requirements) or rules of a self-regulatory organization, such as FINRA.
What Type of Conduct is Prohibited by the Law?
The law prohibits employers from requesting or requiring an employee or applicant for employment, as a condition of employment, to disclose "access information" for a Personal Internet Account or to otherwise grant access to or allow observation of that account. "Access information" means a user name, password or any other security information that protects access to a Personal Internet Account.
Employers are also prohibited from refusing to hire an applicant, terminating an employee's employment or otherwise discriminating against an employee or applicant for refusing to disclose access information for, grant access to, or allow observation of the employee or applicant's Personal Internet Account. Employers are also prohibited from retaliating against an applicant or employee who opposes an employer's request for such information, files a complaint, or testifies or assists in any action or proceeding to enforce such privacy rights.
Are There Any Exceptions?
Among other exceptions, employers may request disclosure of access information in connection with an investigation of or discipline relating to an employee's suspected transfer of the employer's proprietary or confidential information or financial data to the employee's Personal Internet Account or in connection with employment-related misconduct, violation of the law, or violation of the employer's work rules as specified in an employee handbook. To avail themselves of this exception, however, employers must have reasonable cause to believe that the activity on the employee's Personal Internet Account relating to the misconduct has occurred. The law also permits employers to request or require applicants and employees to disclose personal e-mail addresses and access employer-supplied equipment and accounts used for business purposes.
What Happens if an Employer Accidentally Accesses Protected Information?
If an employer inadvertently obtains access information for an employee's Personal Internet Account, the employer will not be liable for possessing that access information, so long as the employer does not use that access information to access the employee's Personal Internet Account.
Is There Any Obligation to Monitor Employee Personal Internet Accounts?
Notably, the law makes clear that it does not create a duty for an employer to search or monitor the activity of any Personal Internet Account.
What Should an Employer Do?
In light of this new legislation, and as we previously advised, employers should review application forms and interview scripts to ensure that all inquiries made to applicants are lawful with respect to social media and other areas as state laws continue to evolve. Additionally, before performing any investigation of workplace misconduct involving an employee's Personal Internet Account, employers should ensure that they have reasonable suspicion to conduct the investigation and that the misconduct is specified in an employee handbook or other written policy.