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Workplace Privacy, Data Management & Security Report

Louisiana Follows Wisconsin and Tennessee in Protecting Employee and Student Personal Online Account Access Information

By Joseph J. Lazzarotti on May 27, 2014
Posted in Data Security, Information Management, Information Risk, Monitoring, Photos, Videos and Surveillance, Social Networking, Workplace Privacy

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.

Tags: keylogging, Louisiana, password, personal online account, social media, spyware, Tennessee, Wisconsin
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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.

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