Wisconsin has joined twelve other states in adopting restrictions on an employer’s ability to access the social media accounts of job applicants and employees.
Specifically, Wisconsin Act 208 prohibits employers from “request[ing] or requir[ing] an employee or applicant for employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account.” The law took effect on April 9, 2014.
What Constitutes “Access Information”?
Under the statute, “access information” means user name and password information, or any other security information “that protects access to a personal Internet account.” The law also imposes these restrictions on educational institutions with regard to current and prospective students, as well as on landlords in the context of tenants and prospective tenants.
Additionally, the statute prohibits employers from discharging, discriminating against, suspending, refusing to hire, or retaliating against applicants and employees for exercising their rights under the statute.
Employer Compliance with Wisconsin Public Act 208
While the statute does present new restrictions for employers, it also sets forth permissible acts to aid employers in compliance. For instance, the statute allows employers to require employees to allow access to an “electronic communications device” paid for in whole or in part by the employer. This means that an employer could access the mobile phones it provides to employees. Employers also may demand access to an account the employer has provided as a result of the employment relationship “or used for the employer’s business purposes.”
Moreover, employers can discipline or discharge employees for transferring confidential or otherwise proprietary information—without authorization—to their personal accounts. Employers can also require access to information in order to conduct an investigation relating to the alleged transfers of information and other issues of alleged employment-related misconduct “if the employer has reasonable cause to believe that activity on the employee’s personal Internet account relating to that misconduct or violation has occurred.” In such cases, employers can require employees to grant access or otherwise allow observation of their personal Internet accounts. However, employers cannot require employees to disclose access information for the account(s) in question.
Finally, an employer is not subject to liability if it inadvertently accesses information for an employee’s personal Internet account by monitoring the company’s network, provided that the employer does not utilize the information to access the account. Employers that violate the law “may be required to forfeit not more than $1,000.”
The other states that bar employers’ access to employees’ social media accounts are Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah, and Washington.
Bottom Line
Wisconsin now prohibits employers from requesting or requiring access to the personal Internet accounts of employees and job applicants. While the statute places new restrictions on employers’ ability to require access to this information, it also provides a thorough explanation as to what constitutes permissible employer conduct when investigating alleged employee misconduct.
In Minnesota, the Legislature has tried (unsuccessfully) for the past several years to pass similar legislation. Although no similiar law exists in Minnesota, employers should be very cautious when requesting or requiring access to the social media accounts of employees or applicants because federal privacy laws may prohibit the activity.
If you have any questions about employee social media use, feel free to contact anyone from Felhaber Larson’s Labor & Employment practice group.