Over the past few years, states around the country have enacted laws limiting an employer’s ability to access the personal social media accounts of applicants and employees. Earlier this year, Montana’s Governor Steve Bullock signed HB 342 into law. Before that, Virginia enacted a similar measure. On May 19, Connecticut’s Governor added the Nutmeg state to the list, signing S.B. 426 into law, becoming effective October 1, 2015. Taking the protection of employee social media accounts a step further, a measure in Oregon, S.B. 185 A, would amend its existing law to prohibit employers from requiring employees or applicants (i) to establish or maintain personal social media accounts or (ii) to authorize the employer to advertise on their personal social media accounts. That bill, unanimously passed by the State’s legislature, awaits consideration by the Governor.

Similar to the social media privacy laws passed in other states, Connecticut’s law prohibits employers from requesting or requiring an employee or applicant to provide a user name and password, password or any other authentication means for accessing a personal online account. Under the law, employers also cannot require employees or applicants to authenticate or access a personal online account in front of the employer, nor can employers require employees or applicants to invite the employer or accept an invitation from the employer to join a group affiliated with the employee’s or applicant’s account. Like some of the laws in other states, a personal online account is one that is used by the employee or applicant “exclusively for personal purposes and unrelated to any business purpose of such employee’s or applicant’s employer or prospective employer, including, but not limited to, electronic mail, social media and retail-based Internet web sites.”

However, the Connecticut law does not prohibit employers from conducting certain investigations, such as to ensure compliance with state or federal laws, regulatory requirements or prohibitions against work-related employee misconduct based on the receipt of specific information about activity on an employee or applicant’s personal online account. Employers also may monitor, review, access or block electronic data stored on an electronic communications device paid for, in whole or in part, by the employer, or traveling through or stored on the employer’s network. The law also does not “prevent an employer from complying with the requirements of state or federal statutes, rules or regulations, case law or rules of self-regulatory organizations.”

This last point may be helpful for those employers that may have a duty to monitor certain employee communications. For example, in expressing concerns over the effects of these state laws, the Financial Industry Regulatory Authority (FINRA) noted that its Regulatory Notices 10-06 and 11-39 provide that securities firms must establish procedures to review registered representatives’ written and electronic business correspondence, including interactive electronic communications that the firm or its personnel send through social media sites. In addition, firms must adopt policies and procedures reasonably designed to ensure that their associated persons who participate in social media sites for business purposes are reasonably supervised to ensure that their communications are fair and balanced. Of course, employers in these regulated businesses and generally will have to carefully review what is prohibited under these state laws, but also the exceptions, in order to shape a strategy for compliance.

As a way of enhancing their exposure and reach in social media, some employers are looking to leverage their employees’ social media presence to more broadly promote the companies’ products and services. Putting aside potential labor, wage and hour, and other employment issues, the bill in Oregon would address potential privacy issues resulting from the practice of compelling employees to allow employers to use employees’ personal social media accounts to advertise. One effect of the law may be that employees will not allow their personal accounts to be used for business purposes. That, of course, may address some of the concerns FINRA and others raise about being able to monitoring business communications by employees in their personal social medical accounts. Another effect of the law may be the difficulty created in determining whether the employer required, or the employee permitted, the personal online account to be used for advertising the company’s products or services. For certain categories of employment, increased exposure and sales of the company’s products and services result in direct benefits to the employee, as well as the employer.

If passed, employers subject to the Oregon law will have to exercise caution in their approach to employees about using their personal accounts for business purposes. Also, like the popularity of the social media account protection laws themselves (21 states have now enacted these in one form or another), this twist in Oregon may be followed elsewhere.

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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.