by Sara Sakagami
Virginia’s new law placing restrictions on the circumstances in which employers may access their employees’ social media accounts takes effect July 1.
Virginia Code § 40.1-28.7:5 prohibits employers from requiring current or prospective employees to either (1) disclose login information for a personal social media account or (2) add an employee, supervisor, or administrator to the list of contacts associated with a personal social media account. The law defines a “social media account” as a “personal account with an electronic medium or service where users may create, share or view user-generated content.” Included in the definition are videos on sites such as YouTube, photographs on sites such as Instagram or Photobucket, blogs, podcasts, messages, e-mails, and website profiles and locations.
The law prohibits employers from using inadvertently obtained login information to access an employee’s social media account. The law also makes it illegal for employers to fail or refuse to hire a prospective employee for exercising his rights under the law or threatening or taking actions to discharge, discipline, or penalize a current employee for exercising his rights.
The law doesn’t provide employees a private claim for violations. That means an employee can’t file a lawsuit and seek damages. Instead, an employee must file a complaint with the Virginia Safety and Health Commission. The commission will investigate, and if it finds a violation of the law, it has the power to issue a citation or penalty against the employer. Penalties can go as high as $7,000 for a single violation and $70,000 for willful or repeated violations.
For more information on the Virginia social media privacy law, see the June issue of Virginia Employment Law Letter.
Sara Sakagami is an attorney with DiMuroGinsberg, PC in Alexandria, Virginia. She can be reached at email@example.com.