Labor and Employment Alert: Virginia Limits Employer Access to Employee Social Media Accounts

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Underscoring a national trend, Virginia joined 18 states (Arkansas, California, Colorado, Illinois, Louisiana, Maryland, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin) limiting employer access to the social media accounts of job applicants and employees.

Beginning on July 1, 2015, employers in Virginia will be prohibited from requiring that applicants and employees disclose their username and/or password to their personal social media accounts.  Employers also will be prohibited from requiring that applicants and employees add an employee, supervisor or administrator to the list of contacts associated with those accounts.  Employers are prohibited from discharging, disciplining, or otherwise penalizing an employee and from refusing to hire an applicant for refusing to provide their username and password.

However, the law contains several important provisos:

Virginia’s social media law highlights the need to be aware of the ever-shifting landscape of laws and regulations affecting social media.  Similar legislation has been or is likely to be introduced in other states.  In Ohio, for example, a bill to restrict employer’s access to social media accounts has been introduced to make unauthorized access an unlawful discriminatory practice.  We outlined this proposed legislation in a previous Labor and Employment Alert. The National Labor Relations Board has aggressively scrutinized employers’ social media policies to see whether the policies interfered with employees’ rights to engage in concerted activity.  And the Equal Employment Opportunity Commission has reiterated that employers may not use personal information, including that obtained from social media postings, to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability or genetic information.  Contact your Vorys lawyer if you have questions about your company’s social media policies.