On January 1, 2014, an amendment to the Right to Privacy in the Workplace Act went into effect that grants employers authority to seek access to employee’s social media accounts when the information being sought is related to a professional account. Previously, employers were prohibited from seeking any information relating to its employee’s social media accounts, whether that account was related to the employer or not.
The new amendment seeks to distinguish between an employee’s private social media account and a professional account for which they may request information. Under the old law, a social networking website was generally defined as an Internet-based service that allows individuals to construct a public or semi-public profile for which they can create a list of other users with whom they share a connection and view and navigate those connections. While the definition was not changed pursuant to the new amendment, the Legislature went on to distinguish between a “professional account” and a “personal account”. Under the new law, a “professional account” means an account, service, or profile created, maintained, used, or accessed by a current or prospective employee for business purposes of the employer. A “personal account” means an account, service, or profile on a social networking website that is used by a current or prospective employee exclusively for personal communications unrelated to any business purposes of the employer.
While it is still unlawful for an employer to request or require an employee or prospective employee to provide information or access to their personal social networking account, an employer may now seek information relating to a professional account from both employees and prospective employees. For example, if an employee created a LinkedIn page for their employer’s business, the employer would have the right to request the passwords and access information relating to that account.
Several questions still remain about this new amendment. It is difficult to imagine a scenario where a prospective employee would have access to a “professional account” related to the business purposes of the prospective employer which would then allow the employer to request access. The definition for “personal account” states that it must be used “exclusively for personal communications unrelated to any business purposes of the employer”. However, the legislature does not provide any guidance on what would rise to the level of communications that are related to the business purposes of the employer. A common example would be an employee who makes a positive or disparaging remark about their employer on a social networking website. Would this amount to communications related to the business purposes of the employer thereby terminating the “personal account” status? While an employer can still have an internal policy in place that would allow for punishment or termination for making purely disparaging remarks on social media, that is quite different from allowing the employer access to an employee’s private social network which is completely personal but for the disparaging remark.
Questions aside, allowing employers access to social media sites that relates to the employers business is a logical step that will ensure they retain control over profiles related to their business. Only time will tell if this amendment went too far and provided a loophole that will routinely allow employers to demand access to an employee’s personal account.
Should you have any questions about requesting access to a social media profile, or any other law that may affect the operation of your business, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.
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