Also, these laws generally do not apply to publicly-available social media content. Consequently, employees and applicants should regularly monitor privacy settings for services like Facebook and Instagram, if self-censorship isn’t a viable option.
Some states (Wisconsin, Lousiana) allow employers to restrict or prohibit employee access to certain internet sites while using an electronic communications device (computer, tablet, PDA, smartphone) supplied or paid for in whole or in part by the employer, or while using the employer’s network or other resources. Of course, employees should always use caution in conducting any personal business on an employer-provided device or while on the employer’s computer network.
Wisconsin and Louisiana also permit employers to request or require an employee to disclose the employee’s personal e-mail address. The Louisiana law explicitly states that the employer may request the employee’s personal e-mail address to facilitate communication in the event the employer’s e-mail system fails. The Wisconsin law doesn’t contain any such limitation.
Tennessee prohibits employers from requiring employees or applicants to add the employer to the employee’s or applicant’s list of contacts associated with a social media account. Tennessee, Oklahoma, and California also prohibit employers from requiring employees or applicants to access a social media account in the presence of the employer, such that the employer can observe the contents of the account.
What are the takeaways from this review? For employees, there are two. First, in a growing number of states, employees and applicants have the legal right to refuse employer requests regarding access to social media accounts. Second, employees and applicants need to be cautious about using employer-provided (or paid for) devices or networks to access social media.
For employers, the first takeaway is essentially the same: in 16 states, the employer cannot request or require employees or applicants to provide access to his or her social media accounts. The number of states that will prohibit such a practice is likely to grow, and quickly. Second, an employer should determine what obligations apply in its state, and provide training and guidance to human resources personnel and managers. For employers with operations in more than one state, they must determine what obligations apply in each state, and decide whether to apply multiple standards tailored to each state, or one standard that covers all operations. Finally, employers in states that do not yet have such legislation should consider whether to get ahead of the trend by setting policies now restricting questions about access to social media.
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