Restrictions on Employer Access to Social Media Accounts in Wisconsin

In April of 2014, Wisconsin became one of the latest states to pass legislation prohibiting employers from requiring access to employee or applicant social media accounts as a condition of employment.  See 2013 Wisconsin Act 208.  The new law in Wisconsin provides that employers generally may not:

  1. Request or require 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;
  2. Discharge or otherwise discriminate against an employee for exercising the right under subd. 1. to refuse to disclose access information for, grant access to, or allow observation of the employee’s personal Internet account, opposing a practice prohibited under subd. 1., filing a complaint or attempting to enforce any right under subd. 1., or testifying or assisting in any action or proceeding to enforce any right under subd. 1; or
  3. Refuse to hire an applicant for employment because the applicant refused to disclose access information for, grant access to, or allow observation of the applicant’s personal Internet account.

The law includes a number of exceptions.  For example, the law allows employers to:

  1. Request or require an employee to disclose access information to the employer in order for the employer to gain access to or operate an electronic communications device supplied or paid for in whole or in part by the employer or in order for the employer to gain access to an account or service provided by the employer, obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes;
  2. Discharge or discipline an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account without the employer’s authorization;
  3. 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 the employee’s personal Internet account, if the employer has reasonable cause to believe that such a transfer has occurred, or of any other alleged employment-related misconduct, violation of the law, or violation of the employer’s work rules as specified in an employee handbook, 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 – if this occurs, an employer may require an employee to grant access to or allow observation of the employee’s personal Internet account, but may not require the employee to disclose access information for that account;
  4. Restrict or prohibit an employee’s access to certain Internet sites while using an electronic communications device supplied or paid for in whole or in part by the employer or while using the employer’s network or other resources;
  5. Comply with a duty to screen applicants for employment prior to hiring or a duty to monitor or retain employee communications that is established under state or federal laws, rules, or regulations or the rules of a self-regulatory organization, as defined in 15 U.S.C. 78c(a)(26);
  6. View, access, or use information about an employee or applicant for employment that can be obtained without access information or that is available in the public domain; or
  7. Request or require an employee to disclose the employee’s personal electronic mail address.

Similar legislation has been introduced in Minnesota before, but has never passed into law.  Other states with similar laws include Arkansas, California, Colorado, Illinois, Maryland, Michigan, New Jersey, New Mexico, Nevada, Oregon, Tennessee, Utah, and Washington.

Takeaway:  Wisconsin’s new law represents an ongoing trend in social media privacy legislation that began several years ago.  However, many people have questioned the utility of these laws.  Apart from a few isolated examples, there does not seem to be evidence that it is a common practice for employers to demand access to personal social media accounts of employees or applicants.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on June 4, 2014, in Hiring, Technology and the Workplace and tagged . Bookmark the permalink. Leave a comment.

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