On August 7, Delaware Governor Jack Markell signed a law to prohibit employers from interfering with the personal social media accounts of their prospective and current employees. The new law, which also took effect on August 7, defines “personal social media” to encompass any account on a social networking site created and operated by a prospective or current employee exclusively for his or her personal use. The term does not include accounts created or operated by an employer and that are operated by an employee as part of his or her employment.
Specifically, the new law prohibits an employer from requesting or requiring a prospective or current employee to:
- disclose a username or password for the purpose of allowing the employer to access personal social media;
- access personal social media in the presence of the employer;
- use personal social media as a condition of employment;
- divulge any personal social media (except as otherwise permitted by the new law);
- add a person, including the employer, to the list of contacts associated with the prospective or current employee’s personal social media,
- invite or accept an invitation from any person, including the employer, to join a group associated with the prospective or current employee’s personal social media; or
- alter settings on the prospective or current employee’s personal social media that affect a third party’s ability to view the contents of the medium.
The new law also forbids an employer from taking adverse action against a prospective or current employee for failing to comply with any of these requests or demands.
Despite these broad prohibitions, nothing in the new law prevents an employer from:
- exercising its right or obligation under its personnel policies, federal or state law, case law, or other rules or regulations to require or request that an employee divulge a username, password, or social media “reasonably believed to be relevant” to an investigation of alleged employee misconduct or violation of applicable laws and regulations (so long as the social media is used solely for purposes of that investigation or a related proceeding);
- requiring or requesting an employee to disclose a username, password, or other accessing credentials for (i) an electronic communication device supplied by or paid for in whole or in part by the employer; or (ii) an account or service provided by the employer, obtained by virtue of the employee’s employment relationship, or used for the employer’s business purposes;
- accessing, blocking, monitoring, or reviewing electronic data stored on an employer’s network or on an electronic communications device supplied by or paid for in whole or in part by the employer;
- complying with a duty to screen prospective or current employees, or to monitor or retain employee communications, (i) under federal or state law or by a self-regulatory organization, as defined in the Securities and Exchange Act of 1934 (like FINRA); or (ii) in the course of a law enforcement employment application or officer conduct investigation performed by a law enforcement agency; or
- accessing, using, or viewing information about a prospective or current employee otherwise available in the public domain.
The new Delaware law continues a growing trend across the country. Twenty-one other states have similar laws restricting employer access to a prospective or current employee’s personal social media account, including Arkansas, California, Colorado, Connecticut, Illinois, Louisiana, Maryland, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Virginia, Washington, and Wisconsin.
Katharine Parker and Daniel Saperstein are Co-Chairs of Proskauer’s Hiring & Background Checks Group.