Wisconsin Denies Employers Access to Employees’ Social Media Accounts

An ever-increasing number of Ameri­cans use social media websites such as Face­book, LinkedIn, and Twitter both on and off the job. In response, some employers have been asking prospective and current em­ployees to disclose their user names or pass­words for personal accounts. The question of whether employers can require applicants and current employees to divulge social media passwords has been hotly debated from both a legal and a moral standpoint.

Employers argue that access to personal accounts is needed to protect proprietary in­formation or trade secrets, comply with fed­eral financial regulations, or avoid exposure to legal liabilities. Employees and others con­sider requiring access to personal accounts an invasion of privacy.

On April 8, 2014, Wisconsin joined a handful of other states by passing a bill protecting nonpublic social media accounts, 2013 Wisconsin Act 208. As of April 10, similar legislation has been introduced or is pending in at least 28 other states.

At the federal level, the Stored Commu­nications Act (SCA) prohibits intentional unauthorized access to any electronically stored communication, which has been in­terpreted to include access to an employee’s personal social media account. The federal Password Protection Act was introduced nearly two years ago but has never reached a vote in Congress. Let’s look at the particulars of Wisconsin’s new law and how it will af­fect employers.

Wisconsin’s New Law

Wisconsin’s new law doesn’t just apply to employers. The law prohibits an employer, educational institution, or landlord from:

• Asking an employee, job applicant, student, prospective student, tenant, or prospective tenant to grant access to, allow observation of, or disclose information that allows access to or observation of his personal Internet account; and

• Discharging, expelling, suspend­ing, disciplining, or otherwise pe­nalizing or discriminating against any person for exercising the right to refuse such a request, opposing such a practice, filing a complaint or attempting to enforce the right, or testifying or assisting in any action or proceeding to enforce the right.

However, the law does allow an employer, educational institution, or landlord to view, access, or use informa­tion about an employee, job applicant, student, prospective student, tenant, or prospective tenant that can be obtained without password access information or is available in the public domain.

The new law also permits an em­ployer to:

• Discharge or discipline an employee for transferring the employer’s proprietary or confidential information or fi­nancial data to his personal Internet account without its authorization;

• Conduct an investigation or require an employee to cooper­ate in an investigation of any alleged unauthorized transfer of the employer’s proprietary or confidential information or financial data to his personal Internet account or any other alleged employment-related misconduct or violation of the law;

• Restrict or prohibit an employee’s access to certain Internet sites while he’s using an electronic communications device paid for in whole or in part by the employer or while he’s using the employer’s network or other resources;

• Monitor, review, or access electronic data that is stored on an electronic communications device paid for in whole or in part by the employer or electronic data that is traveling through or stored on the employer’s network;

• Comply with a duty to screen applicants for employment that’s established under state or federal law or by a self-regulatory organization, as defined under the federal Secu­rities and Exchange Act of 1934; and

• Request or require an employee to disclose his personal e-mail address.

The law provides that its prohibitions don’t apply to a per­sonal Internet account or an electronic communications device belonging to an employee engaged in providing financial ser­vices who uses the account or device to conduct the business of an employer that’s subject to the content, supervision, and retention requirements imposed by federal securities laws and regulations or by a self-regulatory organization.

There is some protection for entities that choose a “hands-off” approach. The law provides that an employer, educational institution, or landlord doesn’t have a duty to search or moni­tor the activity on any personal Internet account. In addition, the employer, educational institution, or landlord isn’t liable for any failure to request or require access to a personal Internet account of an employee, job applicant, student, prospective stu­dent, tenant, or prospective tenant.

What Should You Do?

Employers are using social media as both a “recruiting tool,” seeking job candidates via Facebook, Twitter, and LinkedIn, and a “removing tool,” searching the same sites for reasons to exclude a candidate from the hiring process. If a potential em­ployee has a public profile, you can still review her public page. However, it becomes a problem if you request user names and passwords to look at the candidate’s private profile.

Wisconsin employers should start at the beginning. First, review your employment application and determine whether it contains any questions that directly or indirectly ask applicants to disclose information, codes, or passwords for a personal In­ternet account that may be suspect under the new law. Second, determine whether such information is otherwise requested during the interview or application process. If you dis­cover you are seeking information that may lead to po­tential liability under the new law, you should eliminate or avoid such requests.

Next, take a close look at your policy or general prac­tice for workplace investigations. Situations may arise where access to personal Internet accounts will assist in a harassment investigation or an allegation of an inap­propriate relationship, perhaps between a teacher and a student. However, you must balance the duty to respond and investigate such allegations with the new require­ment to respect the privacy of employees’ personal Inter­net accounts. Finally, if an employee thwarts your efforts to review relevant, but possibly incriminating, personal Internet accounts, you should consult with legal counsel before terminating, disciplining, or otherwise penaliz­ing him for refusing a request for access.

Bottom Line

Given the new Wisconsin law limiting access to per­sonal Internet accounts as well as the increased attention on social media policies, now is a good time to review your policies and practices to ensure they comply with this ever-changing area of the law.

This article was featured in the May 2014 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

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