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New Montana Law Protects Employee Social Media Accounts

Yesterday, Montana became the twentieth state to enact a law protecting employees from employer interference with personal social media accounts.  The law, which takes effect immediately, prohibits employers from requiring or requesting that a current or prospective employee: disclose a username or password to his or her personal social media account; access a personal social media account in the presence of the employer; or divulge any information contained on personal social media.  Employers may not take adverse action against a current or prospective employee for refusing to engage in such activity.

The law includes notable exceptions in the context of employer investigations, allowing employers to require employees to provide access credentials for their personal social media accounts:

  • if the employer has “specific information” about (i) activity indicating work-related employee misconduct or criminal defamation, or (ii) the unauthorized transfer of proprietary/confidential information, trade secrets, or financial data to a personal account; or

  • where necessary to comply with federal laws or regulatory requirements, or with SEC rules for self-regulatory organizations.

Montana’s law also does not apply to social media accounts opened for or provided by an employer and intended only for business-related purposes. In the event of a violation of the law, employees may pursue a private right of action in small claims court, with damages limited to $500 or actual damages, and legal costs to the prevailing party.

Montana joins Arkansas, California, Colorado, Illinois, Louisiana, Maryland, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Virginia, Washington, and Wisconsin, which have passed similar measures.

© 2020 Proskauer Rose LLP. National Law Review, Volume V, Number 114


About this Author

Joseph C O'Keefe Labor Employment Attorney Proskauer Rose Law Firm

Joseph C. O'Keefe is a partner in the Labor & Employment Law Department.

For more than 25 years, Joe has litigated employment disputes of all types, on behalf of employers, before federal and state courts, arbitral tribunals (e.g. FINRA and AAA), and state and federal administrative agencies. Joe has litigated employment-related lawsuits alleging discrimination and sexual harassment, whistleblowing, non-competition/trade secret matters, compensation disputes, breach of contract, defamation, fraud and other business related torts. Joe’s practice includes representing clients...

Daniel L Saperstein, Proskauer Law Firm, Labor Employment Attorney

Daniel L. Saperstein is an Associate in the Labor & Employment Law Department, resident in the Newark office. He is a member of the Employment Litigation & Arbitration, Labor-Management Relations, Employment Law Counseling & Training, International Labor & Employment, and Whistleblower & Retaliation Groups, as well as the Dodd-Frank Task Force.

Kelly Anne Targett, Proskauer Rose Law Firm, Labor Employment Attorney

Kelly Targett is an Associate in the Labor & Employment Law Department, and a member of the Employment Law Counseling & Training, Whistleblower & Retaliation, and Appellate Practice Groups.