Following a handful of other states (such as, California, Illinois, Maryland and Michigan), a new Utah labor law places limits on employers’ ability to access the "personal Internet accounts" of employees and applicants. Gov. Gary R. Herbert signed the state’s "Internet Employment Privacy Act" (IEPA) on March 26, 2013, together with the "Internet Postsecondary Institution Privacy Act" applying similar restrictions on postsecondary institutions with respect to their students and prospective students. 

The IEPA prohibits an employer from asking an employee or applicant to disclose the username and password that allows access to his or her "personal Internet account," as well as taking adverse action against the individual for failing to do so. There are some qualifications and exceptions, however.

First, "personal Internet accounts" are defined to mean online accounts that are used by an
employee or applicant "exclusively for personal communications unrelated to any business
purpose of the employer
." In fact, the statute specifically excludes accounts that are "created, maintained, used, or accessed by an employee or applicant for business related communications or for a business purpose of the employer." Of course, employees frequently use their personal online accounts for business purposes, so it is unclear how widespread the protections under this new law will be.

Consider that most employees’ LinkedIn or Facebook accounts likely include some business contacts for their current employer, setting up the argument that the account is maintained or used for a business purpose of the employer. Perhaps the practical effect of the law will be to provide greater protection for applicants who seem less likely to have online personal accounts created, maintained, used or accessed for a business purpose of the employer. 

Second, the IEPA sets out some specific exceptions, such as:

  • Employers may request or require employees to provide their usernames and passwords to enable the employer to access company-issued (or paid for, in whole or in part) smartphones and other devices, as well as online accounts provided by the employer.
  • Employers may discipline employees for making unauthorized transfers of proprietary or confidential company information or financial data to the employee’s personal Internet account.
  • Employers also may conduct and require employees to cooperate with certain investigations (such as concerning compliance or work-related employee misconduct) when there is specific information about related activity on the employee’s personal Internet account.
  • Perhaps to address the concerns of those employers who have adopted "BYOD" programs, the law does not prohibit the "monitoring, reviewing, accessing, or blocking electronic data stored on an electronic communications device supplied by, or paid for in whole or in part by, the employer, or stored on an employer’s network, in accordance with state and federal law."
  • Employers also are not prohibited under the law from viewing, accessing, or using information that is publicly available on the Internet, although there may be other risks to employers engaging in these activities, such as under the Genetic Information Nondiscrimination Act.

Employees and applicants may sue employers for violating this law, but damages are limited to $500 per violation.

This development only highlights the increasing regulation of employee (and applicant) privacy in cyberspace, particularly for multi-state employers where the laws vary significantly. Employers need to keep on top of these developments, and ensure their managers and supervisors have been trained so they know their limitations in attracting, managing and disciplining employees.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.