On March 23, Virginia Governor Terry McAuliffe signed H.B. 2081, a bill which will limit the ability of employers to access employees’ and applicants’ personal social media accounts.
Under H.B. 2081, which goes into effect on July 1, 2015, an employer may not:
- Require an employee or applicant to disclose their personal social media account usernames or passwords;
- Require an employee or applicant to add another employee, supervisor, or administrator to their list of personal social media contacts; or
- Threaten or take action against an employee, or fail or refuse to hire an applicant, for refusing an employer’s request that violates the statute.
The bill extends a number of protections to employers. First, it does not apply to social media accounts created at the employer’s request, accounts provided by the employer (such as an employer’s email account), or those created by an employee to impersonate the employer (through the use of the employer’s name, logos, or trademarks). Second, an employer will not be liable when it inadvertently learns an employee’s social media login information due to an employee’s use of the employer’s equipment or network. Finally, H.B. 2081 will allow employers to request an employee’s login information when the employee’s social media activity is reasonably believed to be relevant to a formal investigation of the employee’s misconduct and such use is limited to the purpose of the investigation.
Following shortly behind Virginia, Montana enacted its own a social media privacy bill when Governor Steve Bullock signed H.B. 343 into law on April 23. The Montana law went into effect immediately upon signing, and prohibits an employer from requiring or requesting an employee or applicant to:
- Disclose their personal social media account usernames or passwords;
- Access their personal social media account in the employer’s presence or
- Divulge any information or media contained in their account.
Similar to the Virginia law, H.B. 343 prohibits an employer from threatening or taking disciplinary action against an employee or applicant for refusing requests that violate the statute. H.B. 343 also allows an employer to request an employee’s login credentials when specific information about the employee’s misconduct or unauthorized transfer of proprietary or confidential information, trade secrets or financial data has led to an investigation. Social media accounts provided by an employer and intended for business purposes are exempt from Montana’s new law.
With the passage of H.B. 2081 and H.B. 343, twenty states now have laws on the books restricting employers’ ability to obtain employees’ and applicants’ personal social media login credentials and account information. Though everyday social media interactions may seem as innocuous and mundane as the daily conversation around the water cooler, employers should be careful about asking an employee to accept their “friend” request. Thanks to the growing regime of state social media privacy laws, asking an employee to show or share something on their social media wall may inadvertently land an employer in hot water. Consequently, employers should become familiar with these state social media regimes and develop appropriate workplace policies to protect employers from situations they won’t “like.”
You should coordinate with your Human Resources team to make sure your company's internal policies and training addresses the limitations on requiring employees and applicants to provide access to their social media accounts.