November 28, 2021

Volume XI, Number 332

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Efforts to Restrict Employer Access to Social Media Passwords Pick Up Steam

Legislative efforts to prohibit employers and educational institutions from demanding social media passwords from applicants and employees picked up steam as California became the third state to pass such a law on Thursday, September 27, 2012.  California joins Maryland and Illinois as states making this prohibition law, though none of the statutes have yet to go into effect.

The California statute prohibits employers asking for account passwords and from taking any adverse action, including discharge or refusal to hire, against an employee who refuses access to a social media account.  The language of the statute appears to reach demands by employers to even review non-public social media posts without a password, such as an “over the shoulder” review at an employee’s desk, but the full contours of the law won’t be known until it is implemented.

In an interesting twist, the California law does not apply to devices issued by employers.  So, if an employee accesses a personal social media account such as Facebook or Twitter on an employer-issued device.  Thus, an employee who accesses a personal social media account on an employer-issued phone, tablet or laptop might be susceptible to a password demand.

In announcing the passage of the law – via social media, no less – Governor Brown of California emphasized that the law does not impact on employers’ existing rights and obligations to investigate workplace misconduct.  For instance, if an employer has knowledge that an employee is harassing another employee via social media, the employer can’t use the new law as a shield to refuse to act.  Employers must still abide by all workplace discrimination laws and provide a safe work environment for their employees.

At least twelve other states are considering similar laws, and similar bills have been introduced in both the U.S. House and Senate.  Employers across the nation need to be aware of this trend.

© 2021 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.National Law Review, Volume II, Number 274
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About this Author

Amy D. Cubbage, Commercial Litigation Attorney, McBrayer Law Firm
Of Counsel

Amy D. Cubbage practices litigation in the areas of complex tort and commercial litigation, including class actions, toxic torts and mass torts. She also litigates and counsels clients in the area of general constitutional and governmental law, with an emphasis on First Amendment, campaign finance, elections, and other constitutional issues, including the commerce clause, public contracts, governmental ethics, and eminent domain. She also has experience in litigating and counseling clients with respect to energy and environmental matters, including cases involving CERCLA, RCRA, OSHA, and...

502-650-8862
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