Louisiana recently joined a growing list of states that have adopted legislation restricting employer efforts to access the personal social media accounts of job applicants and employees. On May 22, 2014, Governor Bobby Jindal signed House Bill No. 340, known as the Personal Online Account Privacy Protection Act (the “Act”). The Act takes effect on August 1, 2014, and generally prohibits employers from requesting or requiring employees and job applicants to disclose the username and password for their social media accounts and other personal online accounts. The Act further prohibits employers from penalizing or threatening to penalize employees and job applicants for refusing to disclose their username and password associated with their personal online accounts, including discharging, disciplining or refusing to hire the employee/job applicant.
The legislation is broad, covering employers in the private sector, as well as state and local governmental employers. However, the Act does provide for some limited exceptions to the otherwise-broad restrictions on an employer’s ability to request user names and passwords. For example, the Act does not prohibit employers from conducting a workplace investigation or requiring employees to cooperate in a workplace investigation for the purpose of ensuring compliance with applicable laws, regulations, or prohibitions on workplace violence, as long as the employer has specific information about activity on the employee’s personal online account. In addition, the Act does not prohibit employers from searching social networks such as Facebook, Twitter and LinkedIn to obtain information about job applicants and employees, as long as the information can be accessed without the need for a user name and password. Nevertheless, employers who employ such a practice should be aware that their ability to discipline employees for posting disparaging information about the employer, its customers or managers has been limited by the National Labor Relations Board, which treats some social media about terms and conditions of employment as protected concerted activity under the National Labor Relations Act.
As currently drafted, the Act does not appear to contain any provisions addressing means of enforcement in the event of a violation, including fines or civil suits. As a result, it is unclear what, if anything, will occur in the event of a violation.
Currently, approximately 16 states have laws restricting the ability of employers to force employees or applicants to disclose their social media passwords: Arkansas, California, Colorado, Illinois, Louisiana, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oklahoma, Oregon, Tennessee, Utah, Washington and Wisconsin.
The Act also limits the ability of educational institutions to request or require students and prospective students to disclose the username and password for their social medial accounts and other personal online accounts, and prohibits educational institutions from taking adverse action against students or prospective students for refusing to disclose such information.
Click to view the full text of the Personal Online Account Privacy Protection Act.