by Tracey B. Eberling
West Virginia’s new law regulating employer access to employees’ and applicants’ personal social media accounts goes into effect June 10.
The West Virginia Internet Privacy Protection Act is aimed at protecting employees’ “personal accounts,” defined as “an account, service or profile on a social networking website that is used by an employee or potential employee exclusively for personal communications unrelated to any business purposes of the employer.”
The new law says that an employer may not:
- Request, require, or coerce an employee or a potential employee to disclose a username and password or other authentication information that allows access to the employee’s or potential employee’s personal account;
- Request, require, or coerce an employee or a potential employee to access his personal account in the presence of the employer; or
- Compel an employee or a potential employee to add the employer or an employment agency to his list of contacts that enables the contacts to access a personal account.
The law allows employers to access publicly available information about employees or potential employees. Employer-provided devices, accounts, and services are also exempt. An employer may require an employee to provide a username or password to allow access to devices and accounts or services provided by the company or obtained through the employee’s employment as well as accounts and services used for the employer’s business purposes. In addition, employers are authorized to ban employees from using their personal accounts during business hours or for business purposes.
Recognizing that social media accounts often contain evidence that is critical to an investigation into sexual harassment or other harassment claims, the law provides a general caveat that “nothing in this section diminishes the authority and obligation of an employer to investigate complaints, allegations or the occurrence of sexual, racial, or other harassment as provided in this code.” The law allows an employer to request that an employee share “specific content regarding a personal account for the purposes of ensuring compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct.”
Another exception gives employers more authority in investigations, but only in limited circumstances. The law provides that an employer may “require” an employee to share social media content “if the employer has specific information about an unauthorized transfer of the employer’s proprietary information, confidential information or financial data . . . to an employee’s personal account” and it needs access to the account to make a factual determination.
Also, employers are not prohibited from “complying with applicable laws, rules or regulations.” While that may mean employers that are required to perform extensive background checks may compel employees or potential employees to disclose social media access information, that is just one possible interpretation.
For more information on West Virginia’s new law on employer access to employees’ social media accounts, see the May issue of West Virginia Employment Law Letter.