On April 23rd, Montana became the 20th state (joining Maryland, the first to pass such a law, as well as Arkansas, California, Colorado, Illinois, Louisiana, Michigan , Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Virginia, Washington and Wisconsin) to limit the ability of employers to require access to an employee’s, or a job applicant’s, social media account. Montana’s law makes it illegal for employers to require, or even request, an employee’s or applicant’s social media usernames and passwords, that an employee or applicant log onto their social media account in the presence of the employer, or that an employee or applicant divulge their social media account or information contained on the account. Employers are also barred from disciplining, firing or retaliating against an employee for refusing such a request.
However, Montana’s new law does provide some exceptions under which the employer is authorized to request, and the employee is required to provide, such information. These situations include if the employer has “specific information” indicating that the employee committed work-related misconduct, or made an unauthorized transfer of company proprietary, confidential or financial information to an online account or service, or in order to comply with federal laws or certain types of regulatory requirements. The company can also request, and the employee is required to provide, social media information if there is an ongoing investigation and the employee’s information is required in order to make a factual determination. It is worth noting that the employee can seek an injunction to prevent being required to turn over social media information under these circumstances.
It will be interesting to see how the new law will be interpreted, such as whether a simple “friend” (on Facebook) or “connection” request (such as on LinkedIn) is sufficient to violate the law, if it does whether there are circumstances that make such a request acceptable, how “specific” the “specific information” needs to be to justify a request, what types of investigations qualify within the exception to allow a request, and what is considered “work-related misconduct” sufficient to meet that exemption.
In other recent news on social media privacy laws, an amendment to Arkansas’ social media privacy law that sought to exempt religious organizations and businesses that are entrusted with the care of children (such as schools, daycares, summer camps, etc.) did not pass the Arkansas senate. Supporters claimed the exemption would assist in the protection of minors by allowing better screening of individuals that care for children. Opponents of the bill, however, cited a concern over the privacy of teens, who are often hired as summer camp counselors and employees.
Numerous other states are also in the process of considering new laws on social media privacy, looking at amendments to their current laws on the issue, or exploring specific areas of social media privacy (such as in school settings). As this type of legislation continues to be introduced, become law, be amended, and be interpreted by the courts, employers and employees should be sure to consult an attorney when these types of issues arise.