The social media privacy trend on which we have previously reported continues. Oklahoma, Louisiana, and Rhode Island became the latest states to restrict employers’ ability to check the social media profiles of their employees and applicants, joining Arkansas, California, Colorado, Illinois, Maryland, Michigan, New Jersey, Nevada, New Mexico, Oregon, Utah, Washington, and Wisconsin.
Rhode Island’s law, signed on June 30, prohibits employers from requiring, coercing, or requesting employees and job applicants to 1) provide their social media passwords or access to their accounts to the employer, or 2) access their accounts in their employer’s presence. Recognizing that by the very nature of social media employers could view employees’ profiles without their passwords by simply looking them up on the site, the law also prohibits employers from requiring employees and applicants to add the employer to their list of friends or change the visibility settings of their account. However, this does not apply to information that is publicly available. Employers are still allowed to gather profile information “when reasonably believed to be relevant to” workplace investigations.
Similarly, Louisiana’s law prohibits employers from requesting or requiring employees and applicants to provide “any username, password, or other authentication information” by which access to the employee’s or applicant’s profile can be gained. However, there are a number of exceptions. For example, employers are allowed to request usernames and passwords to devices or accounts provided by the employer. Oklahoma’s law is similarly worded, prohibiting employers from requesting or requiring employees to disclose their usernames and passwords or allow the employers to gain access to their profiles if not publicly available.
As in the other states which have adopted these laws, all three laws forbid employers from disciplining employees or deciding not to hire job applicants for their refusal to provide their social media usernames and passwords. Rhode Island and Louisiana specifically prohibit employers from discharging or disciplining employees, while Oklahoma prohibits “retaliatory personnel action” against employees, and all three laws prohibit failing or refusing to hire job applicants because they do not provide social media account information.
This is a trend which is picking up steam around the country. As we have suggested previously, employers who want to research their employees’ and job applicants’ social media profiles as part of making employment decisions should consult with legal counsel to ensure they are aware of all relevant requirements, prohibitions and restrictions in this area.
Brody and Associates regularly advises management on complying with the latest state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
