Nevada joined a recent wave of states to enact laws prohibiting employers from accessing current and prospective employees’ personal social media accounts. While the privacy laws vary in their provisions, the laws generally prohibit employers from requesting user names and passwords to personal social media accounts.
The new Nevada law forbids companies from basing employment on whether or not an employee or applicant has granted the employer access to his or her social media accounts. Effective October 1, 2013, the Labor Commission may impose an administrative penalty of up to $9,000 for each violation, and the employer may be liable to the applicant or employee for any legal or equitable relief. (SeeAssembly Bill No. 181). In addition, the Nevada law prohibits companies from conditioning employment on a consumer credit report or other credit information.
The states that have passed similar social media account protection laws include: Arkansas, California, Colorado, Illinois, Maryland, Michigan, New Mexico, Oregon, Utah, and Washington. Similar laws are pending in over a dozen states, including: Arizona, Connecticut, Georgia, Hawaii, Iowa, Kansas, Maine, Minnesota, Missouri, Montana, New Hampshire, Nebraska, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Texas and West Virginia.
State legislatures also are considering creating carve-outs for securities regulators, broker-dealers, investment advisors and other parties that may have employee-monitoring requirements or recordkeeping and supervisory responsibilities under state and federal securities laws and regulations.
Lesson: While the use of social media by employers has many benefits, employers risk facing claims under state employment and privacy laws if the employer requests certain personal information from current and prospective employees. Employers should be aware of each state’s laws regarding access to an applicant or employee’s personal social media account. Businesses should consider implementing social media policies that separate employee personal accounts from business accounts.