Q&A with Courtney Warmington
Social media legislation is meant
to protect employees of company
Q: State lawmakers last week passed legislation regarding social media. What are the specifics?
A: Employers are prohibited from requiring disclosure of user name or password information for personal online social media accounts of employees or prospective employees. The law also makes it unlawful for an employer to require an employee or prospective employee to access their account in an employer’s presence. Additional provisions prohibit employers from retaliating against employees who refuse to provide such access or refusing to hire prospective employees who do the same. If signed by the governor, the new law will take effect Nov. 1.
Q: Are there any exceptions?
boldA: First, the law does not apply to personal online social media accounts that are publicly available. This law is geared only toward those personal online accounts that an employee or prospective employee has taken steps to keep private. In addition, the law specifically exempts any computer system, network or device provided or subsidized by the employer, as well as any account that has been created for business purposes. The law also recognizes employers may inadvertently obtain user name or password information as part of monitoring the company’s own network systems. An employer who does so is not liable under the law, so long as the information is not used to access the account. The law also makes a number of exceptions for workplace investigations, making clear that employees still can be asked about the content of their online activity, just not their passwords.
Q: What are the implications for employers?
A: The federal Stored Communications Act (SCA) already makes it unlawful for anyone to access an electronic account without being an authorized user. In fact, a number of cases have successfully been brought against employers under the SCA for unauthorized access to all kinds of electronic communications from text messages to private, password-protected blogs. The key is to make sure managers and supervisors understand what state and federal law prohibits when it comes to social media accounts.
Q: How will employees be impacted?
A: The primary impact on employees is that they now have the right to bring a civil action in state court against an employer within six months of the alleged violation. To be successful, an employee or applicant will have to show by clear and convincing evidence that the employer violated the statute. Employees must keep in mind that a simple friend request on Facebook by a manager is not a violation of this law. A penalty of $500 per violation can be awarded. Employees and applicants also can ask for an injunction against the employer to restrain them from continuing to violate the law’s provisions. No punitive or emotional distress damages are allowed.
Q: Do you expect to see this trend continue nationwide?
A: Yes. Roughly 10 states have passed similar legislation with respect to employees, applicants or students. Legislation has been introduced or is pending in at least 26 additional states.
PAULA BURKES, BUSINESS WRITER