Nevada has become the eleventh state in the nation to enact a law restricting employer access to employee social media accounts. Beginning October 1, 2013, it will be illegal for Nevada employers to require or request that an employee disclose his or her username, password, or any other information that would allow the employer to access the employee’s social media accounts. Assembly Bill No. 181, signed into law by Governor Brian Sandoval in June, also prohibits an employer from discharging, disciplining, or otherwise discriminating against an employee that refuses to provide such information. Similarly, employers cannot condition an applicant’s employment on providing employer access to his or her social media accounts.
In many respects, this new law provides broad coverage and protection for employees. First, the law applies to all private employers without exception. Second, the statute defines “social media account” broadly as any electronic service or electronic content including “videos, photographs, blogs, video blogs, podcasts, instant and text messages, electronic mail programs,” and other “online services or Internet website profiles.” Without a doubt, this law covers an employee’s Facebook and LinkedIn profiles, personal web pages or blogs, personal email and instant messaging accounts, as well as Twitter, Instagram, and Vine accounts. The broad language of the statute also likely prohibits an employer from requiring an employee to accept an employer’s digital request to be part of, included in, or to follow the employee’s social media or network. For example, an employer should not request that an employee add a manager as a “friend on Facebook” or that they be allowed to subscribe to his or her private blog.
So what online information are employers permitted to access? An employer may still view or consider publicly available information on an employee’s social media account. For example, an employer is not prohibited from performing an Internet search of an employee and viewing publicly available information, including information on social media websites, returned by that search. Employers may also continue to require employees to provide passwords necessary to access the employer’s own computer systems.
The new law also creates some troubling “grey areas.” Notably, the Nevada statute does not expressly prohibit an employer from reviewing an employee’s social media information that is voluntarily provided to the employer by another employee. However, given the broad scope of the statute, it is conceivable that an employee or administrative agency will claim that the statute does prohibit such conduct. Besides potentially violating this law, accepting social media information about one employee from another employee may also violate state and federal privacy and electronic communications laws. Employers should consult with their employment counsel in these situations.
In light of this law, employers should carefully review their application and screening policies and procedures. This may also be a good time to implement, or update, a comprehensive social media policy. Finally, employees whose job duties include conducting investigations into workplace harassment or violence also need to be familiar with this law because there is no exception in the law that permits employer access to social media information even in these sensitive situations.