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BusinessDiane SlomowitzEmploymentLitigation

Don’t Step On Employees’ Social Media Privacy Rights

By June 5, 2015April 28th, 2020No Comments

A disgruntled employee badmouths your company on Facebook. You can’t access his “private” postings, since he won’t accept your “friend” request.

Frustrated, you want to make all employees give their personal social media passwords to HR.

Don’t do it.

You may violate a Wisconsin law limiting employers’ rights to employee (and applicant) personal social media accounts.

Under the law, an employer cannot request or require that an employee (or applicant), as a condition of employment, give the employer access to or allow observation of the employee’s account; or disclose password, user name or other access information.

An employer also cannot fire or discriminate against an employee (or refuse to hire an applicant) for refusing to provide such access; or for objecting to a potential legal violation.

In addition to $1,000 forfeitures, violations may yield discrimination or retaliation claims, and their damage and other remedies.

The law does excuse employer network monitoring systems’ “inadverten(t)” accessing of accounts.

It also allows limited employer access to protect the employer’s interests. An employer, for example, may require that an employee disclose a personal email address.

An employer may also require an employee’s access information for a computer, cell phone or similar device, which the employer paid for or supplied.

An employer may further require access to an account or service which an employee obtained because of his employment and which he uses for the employer’s business.

Where an employer reasonably believes that an employee, without authorization, has transferred the employer’s confidential/financial information to the employee’s personal internet account, the employer may require access/observation (but not passwords, user names, etc.) for that account.

The employer may take similar steps if it reasonably believes the employee has engaged in work-related misconduct related to the account.

An employer, of course, can legally view public social media information, and legally restrict employee access to internet sites through employer equipment/networks.

The law also applies to lessors and educational institutions, but not regulated financial institutions.

Social media is here to stay. Don’t step over its privacy line.

Work with FOS to create a legal, well-defined, and easily implemented social media policy.