Workplace Privacy, Data Management & Security Report : Privacy Lawyers & Attorneys : Jackson Lewis Law Firm : Data Security, HIPAA & Confidentiality Issues

Shortly after Utah inked its own law, New Mexico Governor Susana Martinez signed S371 into law on April 5, 2013. Similar to the provisions in other states (such as, California, Illinois, Maryland and Michigan), S371 makes it illegal for employers to request or require applicants to provide a password, or demand access in any manner, to an applicant's social media account or profile. Unlike some of the laws in other states, the New Mexico statute appears to apply only to prospective employees, but not current employees.

Additionally, S371 makes clear that certain activities by employers are not affected by the law, namely:

• having electronic communication policies in the workplace addressing internet use, social networking activity and email,
• monitoring use of the employer’s information systems and networks,
• using information that is publicly available on the Internet, although as noted in prior posts there may be other risks to employers engaging in these activities, such as under the Genetic Information Nondiscrimination Act.

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Written by Jason Gavejian

One of the hottest topics throughout 2012 was the various states which passed, or enacted, legislation which prohibits employers from requiring current, or prospective, employees to disclose a user name or password for a personal social media account, such as Facebook or LinkedIn. In fact, this issue was recently featured in an article on nbcnews.com.   

Notably, fourteen states introduced such legislation in 2012, with Michigan becoming the most recent state to enact such legislation when Governor Rick Snyder signed his state’s equivalent law (HB 5523) last Friday. As we have discussed, California, Delaware (dealing with students at colleges and universities), Illinois, Maryland, and New Jersey (pending Governor's signature) also enacted laws on this issue in 2012.

We anticipate that other states will address this issue through legislation in 2013 and beyond. It is essential for businesses to be conscious of these new laws, and to carefully consider this issue whether or not the state in which they operate currently prohibits such conduct.
 

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New Jersey may become the fourth state, following Maryland, Illinois and California, to place limits on employers' ability to access the social media accounts of employees and applicants, following yesterday's 38-0 vote in the State's Senate. S1915 makes some changes to an Assembly bill that also was overwhelmingly approved. 

The Senate version would provide for a private right of action, in addition to civil penalties starting at $1,000 per violation. Acts by an employer that could lead to a violation include requiring or requesting that an employee or applicant disclose whether he or she has a personal social media account, or that he or she provide access to such account. Assuming the Assembly approves these changes, the measure will head to Governor Chris Christie for signature.   

If approved, the law would take effect on the first day of the fourth month following enactment. The Senate also approved a similar measure affecting college students.

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Late last week, California Governor Jerry Brown "took to Twitter, Facebook, Google+, LinkedIn and MySpace to announce that he has signed two bills that increase privacy protections for social media users in California."

As discussed, one of the bills, A.B. 1844, updates California's Labor Code to significantly limit when employers could ask employees and job applicants for social media passwords and account information. However, the law permit employers to request an employee to divulge personal social media activity reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations. This exception  applies so long as the social media is used solely for purposes of that investigation or a related proceeding.

The other bill, S.B. 1349, establishes a similar privacy policy for postsecondary education students with respect to their use of social media. While the bill prohibits public and private institutions from requiring students, prospective students and student groups to disclose user names, passwords or other information about their use of social media, it stipulates that this prohibition does not affect the institution’s right to investigate or punish student misconduct

The new laws take effect Jan. 1, 2013.

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Updating an earlier post, California A.B. 1844 is on its way to Gov. Jerry Brown. If signed into law, the bill would update California's Labor Code to significantly limit when employers could ask employees and job applicants for social media passwords and account information. However, the law would still permit employers to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations. This exception would apply so long as the social media is used solely for purposes of that investigation or a related proceeding.

If A.B. 1844 becomes law, it would join Maryland and Illinois which have enacted similar laws.

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The Washington Post reported on Governor Pat Quinn's signing of HB 3782 on August 1, 2012, at the Illinois Institute of Technology, making Illinois the second state following Maryland to prohibit employers from asking employees or applicants for their Facebook and other social media passwords. The law becomes effective January 1, 2013.

As we reported, HB 3782 amends the State's Right to Privacy in the Workplace Act to make it illegal for employers to ask potential and current employees for their social media passwords:

It shall be unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information in order to gain access to the employee's or prospective employee's account or profile on a social networking website or to demand access in any manner to an employee's or prospective employee's account or profile on a social networking website.

However, the law would not limit an employer's right to:

• have policies to regulate employees' use of the employer's electronic equipment, Internet use, social networking site use, and electronic mail use; or
• monitor the employee's use of the employer's electronic equipment and the employer's electronic mail.

The law also would not prohibit employers from reviewing information about employees or applicants that is in the public domain, so long as the employer complies with other applicable law. Of course, even information in the public domain can have traps for the unwary employer, such as learning about an applicant's family medical history on his or her Facebook site which would raise issues under the Genetic Information Nondiscrimination Act.

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The vote by the Illinois Senate, 55-0, in favor of HB 3782 may put Illinois ahead of California and other states to follow Maryland in making it illegal for Illinois employers to ask employees or applicants for their Facebook and other social media passwords. The bill awaits signature by Governor Pat Quinn, which was overwhelmingly approved by the House in March.

HB 3782 would amend the State's Right to Privacy in the Workplace Act to make it illegal for employers to ask potential and current employees for their social media passwords:

It shall be unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information in order to gain access to the employee's or prospective employee's account or profile on a social networking website or to demand access in any manner to an employee's or prospective employee's account or profile on a social networking website.

However, the law would not limit an employer's right to: 

• have policies to regulate employees' use of the employer's electronic equipment, Internet use, social networking site use, and electronic mail use; or
• monitor the employee's use of the employer's electronic equipment and the employer's electronic mail.

The law also would not prohibit employers from reviewing information about employees or applicants that is in the public domain, so long as the employer complies with other applicable law. Of course, even information in the public domain can have traps for the unwary employer, such as learning about an applicant's family medical history on his or her Facebook site which would raise issues under the Genetic Information Nondiscrimination Act.

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Not long after Maryland enacted a law prohibiting employers from demanding passwords to employees' or prospective employees' Facebook and certain other social media accounts, the California State Assembly voted 73-0 in favor of A.B. 1844. The California bill would prohibit an employer from requiring: 

an employee or prospective employee to disclose a user name or account password to access a personal social media account that is exclusively used by the employee or prospective employee.

The state's Senate will now need to consider the measure, where a related bill, S. 1349 (named "The Social Media Privacy Act"), would also protect students from having to disclose similar information to school officials. A hearing on S. 1349 is scheduled for May 21. Congress and a number of other states, including, Delaware, Illinois, Michigan, Minnesota, Missouri, New York, and South Carolina are considering similar measures.

Employers will need to monitor these developments carefully and consider how to advise and train their managers and human resources personnel about these new requirements.
 

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UPDATE: Governor Martin O'Malley signed the bills discussed below into law on May 2, 2012.

Maryland will likely become the first state to prohibit employers from demanding usernames, passwords or other means to access any personal account or service through an electronic communication device (computer, phone, PDA, etc.), such as social media sites Facebook or LinkedIn, belonging to employees or job applicants. If signed by Governor Martin O’Mailey, as expected, the new law would become effective October 1, 2012, after being passed unanimously passed in the Senate last week and by a vote of 128-10 in the House. Employers need to monitor developments, as legislatures in other states have taken up similar measures.

S.B. 433/ H.B. 964 applies to any employer engaged in business in Maryland, as well as any unit of state or local government. It also reaches any agent, representative or designee of a covered employer. So, an employer cannot ask a third party to do under the law what the employer cannot do.

Covered employers also are prohibited from discharging, disciplining or otherwise penalizing  employees or applicants (or threatening same) who refuse to comply with the requests for access prohibited above. In addition, employers may not fail or refuse to hire applicants to object to similar requests. However, the Maryland law prohibits employees from making unauthorized downloads of company financial or proprietary data, and permits employers to investigate when it receives information about such activities. 

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Written by Richard Greenberg

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