Virginia Employers: Don’t Force Facebook Friendships

Virginia has now joined the chorus of jurisdictions that ban social media snooping by employers.  As we previously reported here and here, in a growing trend a number of states prohibit employers from requiring prospective or current employees to provide access to their social media accounts during the hiring process.  On March 7, 2015, the Virginia legislature passed H. 2081, a law prohibiting employers from asking or requiring employees or applicants (1) to disclose the username and password to their social media accounts, and (2) to add an employer to the list of contacts associated with their social media accounts.  This law will take effect upon signature by Governor Terry McAuliffe or, if he does not sign or veto the bill, on March 29, 2015.

Regardless of whether employers review individuals’ social media accounts as an applicant-screening tool or as a method to protect proprietary information or trade secrets, companies doing business in Virginia must cease asking these workers for their social media usernames and passwords once the law takes effect.  The new law does not prevent employers from reviewing any public posts made by the employee or applicant, nor does it penalize an employer that inadvertently receives login information through the employee’s use of an employer-monitored electronic device or network, as long as the employer does not use this login information to access an employee’s social media account.

Importantly, employers may still request an employee’s login information if necessary to comply with applicable law, or if the employee’s social media activity is “reasonably believed” to be relevant to a formal investigation conducted by the employer into allegations of the employee’s unlawful activity or violation of the employer’s written policies.

With the passage of this new law, Virginia employers should educate their recruiters not to ask for passwords to applicant’s personal social media accounts (or even to stand over an applicant’s shoulder while logging in).  Any background research on an applicant should be limited to publicly available information.  Employers also should review their social media and electronic communications policies to ensure that employees’ rights to confidentiality in their social media accounts is properly protected, while preserving the employer’s rights to oversee its electronic systems and to request the production of login information as part of formal investigations into unlawful conduct.

Also keep in mind the other jurisdictions that have passed or are considering similar legislation.  In addition to Virginia, thirteen other states have now enacted social media privacy laws: Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah, Washington, and Wisconsin  According to the National Conference of State Legislatures, in 2015 alone, twenty states have introduced or considered legislation regarding access to social media accounts.  Employers must be aware of the various levels of privacy protections afforded to social media accounts in each state in which they operate or do business.  Epstein Becker & Green, P.C., attorneys can assist with navigating the various applicable state laws and with updating existing, or developing new, social media and electronic communications policies to comply with these laws.