Nevada has become the latest state to enact legislation restricting an employer’s access to employee and prospective employee personal social media accounts. The new law (Assembly Bill No. 181) prohibits Nevada employers from conditioning employment on disclosure of an applicant’s or employee’s personal social media account information, including user names and passwords. The legislation takes effect on October 1, 2013.
Nevada joins Arkansas, Colorado, New Mexico, Oregon, Utah, Vermont and Washington, which also adopted social media privacy laws this year, and California, Illinois, Maryland, and Michigan, which did so in 2012. (For additional information regarding these new laws, see More States Limit Employer Access to Employee Social Media Accounts.)
The Nevada legislation covers all private employers and “any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee.” Employers are prohibited from requiring “directly or indirectly” an employee or applicant to disclose the user name, password or any other information that provides access to the individual’s personal social media account. The legislation also prohibits employers from discharging, disciplining, denying employment to, or otherwise discriminating against, an employee or applicant for refusing to disclose such information. “Social media account” is defined broadly to include any electronic service or account, or electronic content, including videos, photographs, blogs, video blogs, podcasts, instant and text messages, e-mail programs or services, online services or Internet website profiles.
Notably, the law provides no exception for employers conducting investigations into workplace misconduct, such as workplace violence or harassment. However, employers are permitted to require employees to provide the user name, password or any other information to an account or a service, other than a personal social media account, for the purpose of accessing the employer’s own computer system. Further, the law may not be construed to prevent an employer from complying with other state or federal laws.
The new law does not address enforcement or remedies. Even though it states that it will be codified in the employment practices chapter of the Nevada Revised Statutes (Chapter 613), it is unclear whether remedies available under that chapter will be available as, depending on where the law is codified within the chapter, different remedies apply.
As a result of the Nevada legislation, as well as similar laws recently enacted in other states, employers should consider reviewing their hiring and screening practices. Individuals who are responsible for responding to employment inquiries or conducting interviews should be trained on the new law’s restrictions. Employers also should review their applications and hiring policies to ensure compliance.