Date: April 11, 2024Attorney: Joshua S. Bauchner and Jed M. Weiss

In an article for the New York Law Journal Joshua Bauchner & Jed Weiss from Mandelbaum Barrett PC outline the intricacies of a new New York Statute which restricts employer access to employee social media and imposes notice requirements. This litigation stems from reports that employers were demanding social media account information including username and passwords, from applicants as part of their hiring process. This information was being used as a condition for hiring and in some instances resulting in employee termination.

Acknowledging the potential for unfair hiring practices and privacy violations, New York’s Legislature passed S2518A to address these concerns. This legislation prohibits employers within the state from requesting or mandating applicants to disclose any username, password, or other authentication details related to a “personal account” on their personal electronic devices, which the applicant maintains independently. According to §201-i(2) of the legislation, a “personal account” encompasses various electronic platforms where users create, share, and access user-generated content for personal use, including but not limited to videos, photographs, blogs, podcasts, instant messages, and internet profiles or locations.

Furthermore, the article discusses that an employer retains the right to request or compel an employee to divulge information concerning an account used for business purposes (such as LinkedIn), or details pertaining to social media accounts accessed through an electronic device paid for, either wholly or partially, by the employer. This allowance is contingent upon two conditions: (1) the employee must have been notified of the employer’s entitlement to access the device as a condition of its payment, and (2) the employee must have expressly acknowledged this authority in writing, as stated in §201-i(5). Nevertheless, this exception does not grant the employer access to personal accounts on such devices, provided the account is utilized exclusively for personal matters, in accordance with §201-i(1)(d). It’s important to note that the legislation exempts certain categories of employment regulated by the U.S. Securities and Exchange Commission (SEC), as well as law enforcement agencies, fire departments, and specific governmental bodies, as outlined in §201-i(6).

Bauchner and Weiss’s article meticulously unpacks the discussion on employers’ rights to request employee information. Furthermore, employers must take proactive measures to update their employment manuals, policies, and procedures by March 12, 2024, to ensure full compliance with the statute. This entails developing a form to be signed by all applicants and employees, explicitly stating that if they utilize an electronic device partially or wholly paid for by the employer to access personal social media accounts, they thereby consent to granting their employer access to those accounts.

Read the full article here: New NY Statute Restricts Access to Employee Social Media; Imposes Notice Requirements | New York Law Journal