Employers May “Like” New Social Media Law More Than Employees Do

June 1, 2014

The Wisconsin Social Media Protec­tion Act became law in April 2014, osten­sibly giving employees in Wisconsin more privacy in the workplace. Employers may “like” the law as well because it may provide you with new and potentially far-reaching rights to review employees’ personal Inter­net accounts.

The New Law

Facebook walls may be bursting with joy as Governor Scott Walker re­cently signed the Wisconsin Social Media Protection Act into law. The Act, which we described in detail in last month’s issue (see “Wisconsin denies employers access to employees’ social media accounts” on pg. 1), ostensibly gives Wisconsin employees and job ap­plicants more privacy in the workplace and an enforcement mechanism when employers improperly attempt to obtain access to their private Internet accounts. But while the Social Media Protection Act may be hailed as a victory for em­ployee privacy advocates, the law con­tains a notable exception that may give employers wider access to employees’ personal Internet accounts.

The law gives employers the right to require employees to grant access to personal Internet accounts as part of in­vestigations into employee misconduct. This subtle exception may have the practical effect of statutorily eroding employees’ reasonable expectation of privacy in non-work-related commu­nications. The change seems to have implications beyond social media and may give employers a powerful tool for investigating claims of misconduct.

New Protections for Employees

The Social Media Protection Act is designed to protect private information contained in personal e-mail accounts and in other Internet accounts used for personal communications, such as Face­book. The Act prohibits an employer from doing any of the following:

  • Requiring an employee or job appli­cant to provide the employer with access to a personal Internet ac­count as a condition of employment;
  • Refusing to hire a job applicant be­cause he declined to provide the employer with access to a personal Internet account; or
  • Discharging or taking any other adverse employment action against an employee for refusing to provide the employer with access to a per­sonal Internet account.

The Wisconsin Equal Rights Di­vision (ERD), the administrative agency that enforces the Wisconsin Fair Employ­ment Act (WFEA), is charged with enforcing the new law. Employees or job applicants can file a complaint for alleged violations with the ERD and may recover “make-whole” remedies similar to those available for a discrimination complaint. In addition, an employer found to have violated the new law may be required to forfeit up to $1,000.

And New Rights For Employers?

The Social Media Protection Act also provides em­ployers with a new, and potentially far-reaching, right to require access to employees’ personal Internet accounts during investigations into employee misconduct. One of the primary exceptions included in the statute allows an employer to require an employee to grant access to his personal Internet account if the employer has reasonable cause to believe that:

  • The employee violated the law;
  • The employee violated a work rule specified in an employee handbook;
  • Any other employment-related misconduct oc­curred; and
  • The employer has reasonable cause to believe that activity on the employee’s personal Internet account is related to the misconduct.

Rather than an exception, that appears to be a po­tentially broad right conferred on employers to require access to employees’ personal Internet accounts. Indeed, the only limitation on the “right to investigate” is that an employer may not require an employee to disclose her username or password for her personal Internet ac­counts. But even that isn’t much of a limitation because an employer can still require an employee to log in to a personal Internet account and let the employer snoop around.

The new right to investigate seems to be a shift away from employee privacy. Typically, the law presumes that an employee has a reasonable expectation of privacy in his non-work-related communications. Courts often placed the burden on the employer to undercut that ex­pectation of privacy by maintaining policies banning personal computer use, or allowing monitoring of em­ployees’ computer usage, before they would allow the employer to review an employee’s computer usage.

There was also no hard-and-fast rule; courts re­viewed questions of employer access to otherwise pri­vate information on a case-by-case basis. That presump­tion of privacy often caused some hand-wringing for employers that wanted to investigate a legitimate alle­gation of employee misconduct when the needed infor­mation was contained in employees’ personal Internet accounts. The Social Media Protection Act seems to ad­dress that situation by creating a statutory right of access to otherwise personal Internet communications.

Basically, an employer can require an employee to let the company look through his private e-mails or social media posts if it has “reasonable cause” to believe that some sort of employee misconduct occurred and evi­dence can be found in the private communications. And an employee likely has no recourse, absent some explicit agreement in an employee handbook. In other words, it isn’t an actionable invasion of privacy for an employer to force an employee to let it review her otherwise private communications if the employer has reasonable cause to suspect employee misconduct.

New laws often raise more questions than they an­swer, and this one is no different. For instance, how rea­sonable does an employer’s “reasonable cause” need to be if it believes a workplace rule was broken and would like to require access to an employee’s personal Internet account? How will an employer’s Internet usage policies influence a court’s interpretation and application of this new law? What if an employer accesses an employee’s personal Internet account looking for a particular act of employment-related misconduct but finds evidence of an entirely different act? Those issues will need to be fleshed out as the law is enforced and litigated.

Bottom Line

The new Social Media Protection Act has been largely celebrated by employees, but there’s a poten­tially far-reaching right to investigate hiding within it that seems to be a shift in the law in favor of employers. As such, you should review the exception and decide whether it’s a tool you can use to investigate allegations of workplace misconduct.

This article was featured in the June 2014 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorneys Michael J. Westcott and Leslie A. Sammon and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

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