Oklahoma and Louisiana join Wisconsin and Tennessee in recent laws restricting access to applicants’ and employees’ personal online content by prospective and current employers. Adoption of Social Media platforms continues to grow as do new legal and business risks arise as well as state legislatures provide new rules, regulations and guidance. As state by state compliance requirements develop, businesses need to review frequently overlooked elements of key social media guidance, such as how to approach specific areas like Monitoring, Content Approval, Training and Information Security.
This latest round of bandwagon-jumping follows efforts by most other states that have addressed the issue. The key take-away is that business need to take a state-by-state approach to social media legal compliance.
Generally, most of these types of laws prohibit employers from requesting or requiring that applicants or employees disclose a username, password, or other means of authentication for their online accounts.
Employers should be on the lookout for laws that address whether an applicant or employee must accept a “friend” request, change privacy settings to permit access by the employer, or otherwise divulge personal online content.
Another area of concern is the definition of “personal,” “social media” and “account. ” these definitions vary and often cover far more than common notions of social media.
Some laws apply to any online account, including e-mail, instant messaging and media-sharing accounts. Some laws address the scope of use such as “exclusively for personal communications” as opposed to “business purposes of the employer” or “business-related communications.” This carve-out further narrows the scope of the Oklahoma and Louisiana laws.
While these laws generally prohibit adverse actions based based on a refusal to provide user name, password or other authentication information, each law should be scrutinized for broader prohibitions, such as those against penalizing or threatening to penalize an employee or applicant for refusing such requests.
Technology continues to evolve and so does the legal and regulatory environment. Businesses need to continually assess and address the risks created by new laws and new uses of tech in the workplace.
Contact us for a free consultation to learn what we can do to help your business navigate the ever-changing regulatory minefield. What you don’t know can hurt you. We are here to help you avoid getting hurt.