Following the enactment of similar laws in Wisconsin and Tennessee earlier this year, Louisiana Governor Bobby Jindal signed HB 340, the Personal Online Account Privacy Protection Act, into law prohibiting employers and schools in Louisiana from demanding access to personal email, social media and other types of online accounts. The Act applies to just about any employer doing business in the state and any educational institution, from nursery schools to universities and business schools. The Act protects the personal online accounts of employees, applicants, students and prospective students that are unrelated to any business purpose of the employer or educational institution. In general, employees, students, job applicants and prospective students that refuse to provide access to their personal online accounts are protected from being fired, disciplined, denied employment, or otherwise penalized or threatened, and in an educational setting, being expelled, disciplined, denied admission, or otherwise penalized or threatened.
The Act does not protect personal activities on devices owned or services provided by the employer or educational institution, except in the case of an educational institution where there is an intent to permanently transfer ownership of the device to the student or prospective student. It also permits employers to discipline or fire an employee who transfers the employer’s proprietary or confidential information or financial data to the employee’s personal online account without authorization. The Act also does not prohibit employers from engaging in certain investigations, such as where the employer has specific information about activity on the employee’s personal online account and the investigation is for the purpose of ensuring compliance with applicable laws regulatory requirements, or prohibitions against work-related employee misconduct.
Employers are not prohibited from viewing, accessing, or utilizing information about an employee or applicant that is in the public domain and can be obtained without the employee’s or applicant’s username, password or other authentication information. A similar rule applies for educational institutions. In addition, the Act recognizes that through permissible monitoring of its information systems, networks, or employer-provided devices, employers may inadvertently receive an employee’s or applicant’s username, password, or other authentication information pertaining to the employee’s or applicant’s personal online account. In those cases, the employer will not be liable for having the information, but may not use the information to access the employee’s or applicant’s personal online account. Whether use of keylogging or spyware technologies will constitute inadvertent acquisition of an employee’s username or password to a personal online account remains to be seen. However, if there is a reasonably likelihood that such information would be captured by such software applications, it may diminish an employer’s ability to argue inadvertence.
As we’ve said before, employers and schools will need to be more careful in navigating these and other laws when trying to manage certain online activities in the workplace and in academia. This includes making sure managers, supervisors, professors and principals understand the limitations placed upon them in these areas.
