June 20, 2024
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Updated New York Labor Law Protects Employees Social Media Privacy

Employers’ access to the personal social media accounts of employees and job applicants recently has been restricted in New York. Two bills (Assembly Bill A836 and Senate Bill S2518A), were signed into law by Governor Kathy Hochul in September 2023 and became effective as of March 12, 2024, and outline new protections for employees and job applicants pertaining their personal social media accounts. Primarily, employers are now prohibited from “requesting, requiring, or coercing” access to personal accounts of applicants and employees, and cannot require employees/applicants to reproduce information, photos, or videos from their personal accounts. Moreover, employees/applicants are protected from retaliation if they do not wish to disclose their personal social media accounts.

However, there are a few carve outs to the new law, and employers can still:

   -  Require employees to disclose usernames and passwords for accounts that provide access to the employer’s internal systems.

   -  Access information to accounts provided by the employer for business purposes (As long as they provide prior notice to the employee).

   -  Access accounts on devices paid at least in part by the employer (if the employee had prior notice of this condition).

   -  View, access, and utilize information about an employee/applicant that can be obtained publicly. Anything that can be obtained on the internet or without required access information (the personal username & password) is still accessible.

   - Access photos, videos, data, and accounts, as part of an investigation for misconduct.

It is also important to note that employees may still voluntarily add employers on their personal social media.

Key implications of the new law for employers and employees are listed here:

Employer Action Items for Compliance Purposes:

   -  Update company and hiring policies accordingly.

   -  Update training for staff with the new laws in mind.

   -  Do not request access to the personal social media accounts of employees and/or prospective applicants.

Employees and Prospective Applicants May Want to Consult Legal Counsel if:

You are retaliated against (discharged, disciplined, or otherwise penalized or threatened) for failing to disclose such information to your employer.

An employer fails to or refuses to hire you because of your refusal to disclose protected social media information.

Sources:

https://www.nysenate.gov/legislation/bills/2023/A836

https://www.nysenate.gov/legislation/bills/2023/S2518/amendment/A

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