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State Laws Address Social Media Policies

As we have seen recently, the intersection of social media
policies and employment law is a growing area of discussion and litigation. The
extent to which employers have access to information employees post to  social media sites is fairly controversial,
and some states have taken steps to pass legislation that seeks to address the
privacy employees are allowed in regard to their online profiles.

California has passed a new law that bans employers from
forcing employees to hand over their social media passwords
. Advocates of
online privacy cite this law as a victory in preventing employers from using
access to social media sites as a condition for employment. Those drafting the
California law also struggled with how to make sure that employers were not
held responsible for those things that employees did post online. Many online
privacy advocates have expressed an interest in Congress pursing comprehensive
federal legislation to address the dangers associated with employer-accessed
social media. This proposed law would put all states on equal footing in
regards to employment law and social media.

Michigan also recently passed a similar law. The law
prohibits employers and educational institutions from asking employees, applicants,
and students for passwords or other account information used to access social
media and email accounts. Specifically, the law prevents employers from:

1.      
Request
an employee or an applicant for employment to grant access to, allow
observation of, or disclose information that allows access to or observation of
the employee’s or applicant’s personal internet account.

2.      
Discharge,
discipline, fail to hire, or otherwise penalize an employee or applicant for
employment for failure to grant access to, allow observation of, or disclose
information that allows access to or observation of the employee’s or
applicant’s personal internet account.

The law does
allow employers to monitor use on employer-provided devices, and to restrict access
to certain websites while at the workplace. Employers can also gain access to
social media accounts during some types of workplace investigations. Michigan
is now the sixth state to have some form of social media privacy law.

It seems
certain that, in the absence of any comprehensive federal legislation, more states
will take up the issue of social media privacy in the coming year. Given how
controversial employer access to such sites is, states will be pressured to
take action to protect employee privacy while still allowing employers enough
information to make appropriate hiring decisions.