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Employer, You’re Not the Parent – Don’t Unwisely Attempt Access to Facebook/Instagram/Whatever Accounts

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Recently, the Commonwealth of Virginia joined a growing list of states passing legislation which limits employer access to prospective and current employees’ social media accounts. Virginia Governor Terry McAuliffe signed a bill which becomes effective July 1, 2015, and prohibits an employer from requiring job applicants and current employees to disclose the username and password to personal social media accounts or add the employer (its supervisor and/or administrator) or another employee to the list of contacts with a personal social media account.

Leading the pack back in 2012, Maryland was the first state to prohibit employers from demanding social media access, and since that time, and before Virginia jumped on the bandwagon, Arkansas, California, Colorado, Illinois, Louisiana, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin all passed same or similar legislation.

In Virginia, at least, the law specifically prohibits employers from taking adverse actions against prospective and current employees for exercising their rights under the law.; However, the Virginia law does carve out a variety of exceptions for employers, including: 1) employers may request that employees divulge personal login information to social media accounts when the employer has a reasonable belief that there is activity on the account which is relevant to a formal investigation or related proceeding regarding the employee’s violation of federal, state, or local laws or regulations, or (and this is important), to the employer’s written policies; 2) the regulation only applies to the employee’s personal social media accounts and does not prohibit access to an account opened by the employee at the request of the employer; 3) the employer mistakenly or inadvertently receives access to the account through an employer-provided electronic device (but while not liable for having access, the employer still may not use the information to access the account; and 4) the statute still does not prevent the employer from complying with all federal, state or local laws and regulations. Finally, an employer may certainly view all publically accessible information about a job applicant or current employee.

Employers should check their own individual states’ regulations and ensure full compliance with the specifics of applicable laws. It’s also important that they review their hiring and monitoring processes and keep all managers in charge of these company functions apprised of these fairly recent developments.

As use and reliance on social media grows, so too to the pitfalls associated with abuse of personal protections. Don’t be that employer which attempts to ferret out information through those channels if you are among the growing list of states affording protection. We anticipate the list will lengthen in the not so far off future as well.

Hilary Atkins

Posted In: Legal

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