The Basics of State Social Media Laws

Original Photo by: Jason Howie
Original Photo by: Jason Howie

Social media privacy laws are trending across the country. At present 21 states have enacted legislation restricting employer access to the personal social media accounts of employees and applicants, and this trend is likely to continue. While the laws vary in their wording and their specific regulations they cover mostly the same ground.

Here are their common restrictions:

  • The laws generally prohibit employers from requiring or requesting that employees or applicants disclose their login credentials, user names, or passwords.
  • The laws say that employers cannot require or request that an employee or applicant access their personal social media account in their presence or add employees to their contacts. If an account is private employers should not try to gain access to it.
  • The law prohibits retaliation from employers. For example, if an employer were to discipline an employee for refusing to disclose what is on their social media timeline or not hire an applicant who refused to do the same, they could get in trouble.

While the main purpose of these laws are to protect employee privacy, they do have clauses pertaining to employer’s rights and responsibilities.

  • Employers still maintain control over any professional social media accounts held by their business. An employer owns the accounts and have the right to access them. Ideally they should always have the current credentials to access company social media even if they assign someone to oversee the accounts.
  • An employer may request access to an employee’s personal social media if they are conducting an investigation into that employee’s alleged misconduct, and have reasonable belief that the employee’s personal social media activity is relevant to the investigation.

In conclusion, if you as an employer have employees working in any of the states with social media privacy laws, it would be a good idea to examine the specific laws to make sure that you are not in violation. Even if your state has no social media privacy laws, we recommend as a best practice that you create a policy that respects the privacy of employees and applicants, while also giving you the option of request access if it is relevant to an investigation.

 

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