Adopting restrictions on employers’ ability to access the social media accounts of employees and job applicants, Wisconsin has joined 12 other states with similar restrictions.
Wisconsin Public Act 208, effective April 9, 2014, prohibits employers, regardless of size, from requiring or requesting passwords or access information for the social media and other personal Internet-based accounts of employees and job applicants. The new law also imposes similar restrictions on educational institutions as to students and prospective students, and landlords as to tenants and prospective tenants.
The Wisconsin law bars an employer from requiring or requesting an employee or applicant for employment, as a condition of employment, to disclose access information for the individual’s personal Internet account or to otherwise grant access to or allow observation of that account. A “personal Internet account” is any Internet-based account created and used by an individual exclusively for the purpose of personal communications.
An employer is prohibited from suspending, discharging, refusing to hire or otherwise retaliating against an employee or applicant for exercising his or her right under the Act.
However, an employer may demand access information to an electronic communications device supplied or paid for in whole or in part by the employer or to an account or service provided by the employer obtained by virtue of the employment relationship or used for the employer’s business purposes.
An employer also may discipline or discharge an employee for transferring the employer’s proprietary or confidential information to the employee’s personal account without authorization. Further, an employer can require access information to investigate such alleged unauthorized transfer. A Wisconsin employer also may restrict an employee’s access to certain Internet sites using an employer-supplied device.
An employer that inadvertently obtains or accesses information for an employee’s personal Internet account through monitoring of the employer’s network is not liable for possessing the information, so long the employer does not use the information to actually access the account. The Wisconsin statute contains similar prohibitions applicable to educational institutions and landlords.
Any person who violates the law “may be required to forfeit not more than $1,000.” An employee or applicant who is discharged or otherwise discriminated against in violation of the law may file a complaint with the department of workforce development.
Other states with restrictions on employers’ access to the social media access information of employees or applicants are Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah and Washington.