Virginia is now the nineteenth state to provide increased social media protections to prospective and current employees, joining Arkansas, California, Colorado, Illinois, Louisiana, Maryland, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin.
Effective July 1, 2015, Virginia’s law will prohibit an employer from requiring a prospective or current employee to:
- disclose the username and password to his or her personal social media account; or
- add an employee, supervisor, or administrator to the list of contacts associated with his or her personal social media account.
The law specifically prohibits employers from taking adverse actions against prospective or current employees for exercising their rights under the law.
Despite these protections, Virginia’s law contains important carve outs and clarifications.
- Employers may request that employees divulge the login information to their personal social media accounts if the employer has a “reasonable belief” that the account activity is “relevant” to the employer’s “formal investigation or related proceeding” regarding the employee’s violation of federal, state, or local laws or regulations or the employer’s written policies.
- The statute only applies to the personal social media accounts of prospective and current employees – it does not apply to accounts opened at the request of the employer, provided to the employee by the employer, or set up by the employee on behalf of the employer.
- If an employer “inadvertently” receives login information to an employee’s personal social media account through the use of an employer-provided electronic device or a program that monitors the employer’s network, the employer is not liable for possessing this information (but the employer cannot use the information to access the account).
- The statute does not prevent an employer from complying with federal, state, or local laws, rules, or regulations (including the rules and regulations of a self-regulatory organization), or from viewing publically available information about a current or prospective employee.
To ensure compliance with the law, Virginia employers should review their hiring, monitoring, and investigatory procedures as they pertain to employees’ and prospective employees’ social media accounts and make any necessary adjustments.