“Follow me on Instagram, will you?” That may seem like a harmless question to a colleague, but starting soon, New York will ban most employer inquiries regarding an employee’s personal social media account.
What is prohibited?
Under a new law scheduled to become effective on March 12, 2024, New York employers will be prohibited from requesting or requiring employees or job applicants to:
- Disclose their usernames (sometimes called “handles”), passwords, or login information related to a personal social media account;
- Access their personal social media accounts in the presence of the employer/prospective employer; or
- Reproduce personal social media account posts, such as photos, videos, or communications.
The law applies to personal social media accounts, which is broadly defined as “an account or profile on an electronic medium where users may create, share, and view user-generated content.” Popular social media accounts, such as Facebook, Instagram, X, Snapchat, and TikTok, to name a few, fall within the definition. However, the law goes further. It also includes “video blogs, podcasts, instant messages, or internet website profiles or locations,” so long as the account or profile “is used by an employee or an applicant exclusively for personal purposes.”
In addition to the prohibited inquiries above, New York employers may not discharge, discipline, or otherwise penalize an employee or applicant because an employee or applicant refuses to disclose information protected under the law. The law also covers threatened actions. For example, if an employer suggests to an employee that their job may be in jeopardy for refusing to turn over personal social media account information, the employer will have likely violated the law. The same goes for a prospective employer that suggests a job applicant may be rejected if they do not disclose personal social media account information.
What is not prohibited?
There are some notable exemptions to the new law. For starters, an employer may require or request access to information for social media accounts that are known to the employer to be used for business purposes. This exemption may prove helpful for employers who disseminate marketing or other business-related information through social media accounts managed by employees.
The law also allows employers to require access to electronic communications devices for which the employer pays in whole or in part, provided the employer previously notified the employee that its payment for the device was conditioned on the employer’s right to access the device. Note, however, that an employer is still barred from accessing an employee’s personal social media account by using the employer-provided electronic communications device.
The law also includes an exemption for employers that have a duty to screen employees or applicants prior to hiring or to monitor or retain employee communications pursuant to federal law. For example, some government contractors may be obligated to review or monitor employees’ personal social media account information as a condition of performing services for the federal government that involve the handling of national security information.
Publicly available information and information that is voluntarily disclosed by an employee or job applicant is also “fair game” under the law. This means that an employer may view social media account information that is accessed without asking for any of the prohibited information above. For example, if a job applicant voluntarily discloses their social media account username within their résumé—a common practice for applicants in certain industries, such as public relations—an employer may view publicly available information associated with the username. (Note, however, that under the new law the employer cannot request the job applicant to provide their personal social media handle as part of the application process.) Similarly, if an employer is investigating suspected misconduct, such as allegations of workplace harassment, it may consider social media account information that is publicly available or voluntarily disclosed by an employee or job applicant.
What should employers do now?
There are a few practical moves New York employers can make now to minimize risk under the new law. Every employer should consider educating managers about the new prohibitions against accessing personal social media information of an employee or job applicant. The same applies to employees who regularly draft job postings, interview job applicants, or handle internal investigations of misconduct. In addition, employers should consider whether their social media and electronic communications device policies need to be updated. And employers with business-related social media accounts should notify all employees in writing that there is no expectation of privacy in the employees’ use of the social media accounts.
