Caution: Employee Social Media Protections Coming Your Way
New York, N.Y. (November 30, 2023) - In light of the absence of federal regulation, more than half of the states have now stepped in to regulate the social media privacy rights of employees. The most recent push for this move towards social media protections was implemented in New York in September. These additional employee protections add to the ever-growing list of employer obligations under state laws.
New York amended its Labor Law and as of March 1, 2024, employers will be prohibited from requesting, requiring, or coercing an applicant or employee to disclose their username and password to their personal social media accounts. Employees may not be discharged or disciplined for their refusal to disclose or provide access to these accounts. In addition, employers may not refuse to hire an applicant based on the applicant's refusal to disclose this information. The law does not affect an employer’s ability to continue to access employer-owned devices, employer-owned accounts, or information that is publicly available on social media accounts for background checks and investigations. However, employers will need to continue to adhere to state laws regulating the use of publicly available information for background checks.
Employers have historically looked to informal background checks in the form of internet and social media profile searches to determine an applicant’s fitness for the job and to manage employee disputes. In the last decade, 26 states have enacted various iterations of social media privacy laws to both protect employee privacy and to create additional discrimination protections. These states include Arkansas, California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maine, Maryland, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin. We expect additional states to follow suit in the coming legislative seasons. Although each state's currently enacted law has unique aspects, they generally prohibit employers from requesting that current or prospective employees disclose their personal social media information, while allowing employers access to employer-owned devices and accounts.
It is important to also remember that a social media policy that may infringe upon employees' Section 7 rights under the National Labor Relations Act (NLRA), or other policies that could reasonably be interpreted by employees as infringing upon these rights, risk exposing the employer to an unfair labor practice charge. Likewise, employers that discipline employees for social media activity that may be considered protected concerted activity under Section 7 may face exposure for a violation of the NLRA.
It is important for companies to review their background check processes, job applications, and onboarding policies to ensure that they are not violating privacy rights with respect to social media accounts and potentially running afoul of these new laws. Employers should consider streamlining informal conversations between their management team and employees or candidates regarding social media connections and carefully navigating these issues to avoid any potential liability.
Attorneys with our Labor & Employment Practice are available to advise employers on how to navigate these new developments in the law.
Sara Shok, Associate
Peter Shapiro, Partner