What’s Your Password? Employers Seek to Make Private Information Public

by Brian Idehen

Social media has been a recent hot button topic in labor and employment law. More specifically, there is a discussion as to whether passwords to personal social media accounts of employees should be made available to employers. Employers seek these passwords for purposes such as protection of proprietary information;[1] however, there is a fear that the information gathered would or could be used for the unauthorized monitoring of employees’ activities, and ultimately for violations of their rights.[2]

The National Labor Relations Act (“the Act”) allows employees to protect conversations that extend over Twitter and Facebook;[3] however, the Act does not extend protections over to passwords.   The purpose of the Act is to address conditions at work with or without a union,[4] and so conceivably the Act was only concerned with public information. However, employers are also concerned with what is said in private. Namely, employers do not want trade secrets, proprietary information, or anything that can be in violation of federal financial regulations passed between friends or foes.[5] But should employers be allowed to delve into the private lives of their employees, in the name of company preservation?

Twenty-eight states think the answer to that question should be no.[6] Legislation has been enacted or introduced in these states to offer protections for employee privacy in the workplace.[7] Similar to legislation protecting college students from having to give university administrators their passwords, states believe that personal online accounts should not be disclosed.[8]

One such state that protects these interests is New York. New York’s Senate Committee on Labor passed legislation “[p]rohibit[ing] an employer from requesting that an employee or applicant disclose any means for accessing an electronic personal account or service”[9] on May 13 of this year. This was on the heels of the States’ Assembly Committee on Labor in February of the same year stating enacting a bill that “[p]rotects the privacy of employees’ and prospective employees’ social media account [sic].”[10]

We see it more and more everyday: social media affects the lives and, in some instances, the livelihoods of employees and employers in America. Employers are potentially exposed in ways they have never considered before, and, as a result, are looking for ways to insulate themselves from this exposure. Courts have already held that employees who create and manage social media accounts for the company must turnover that login information upon termination;[11] however, there is no desire for that sort of protection to extend to the personal accounts of those same employees it seems.

This issue is not one that is going to go away anytime soon, however. Twenty-two states including Alaska, Colorado, and Oregon have not adopted such legislation, and there does not seem to be any initiative moving towards doing so. Seeing as how this is not a federally regulated issue, and there is such a close split between the states that have adopted legislation and the ones that have not, this seems like a ripe issue to reach the Supreme Court in the coming years.

[1] Employer Access To Social Media Usernames and Passwords, National Conference of State Legislatures, http://www.ncsl.org/research/telecommunications-and-information-technology/employer-access-to-social-media-passwords-2013.aspx (last visited October 27, 2014).

[2] Id.

[3] The NLRB and Social Media, National Labor Relations Board, http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media (last visited October 27, 2014).

[4] Id.

[5] National Conference of State Legislatures, supra note 1.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Venkat Balasubramani, Ex-Employee Converted Social Media/Website Passwords by Keeping Them From Her Employer-Ardis Health v. Nankivell, Tech. & Mktg. L. Blog (October 26, 2011), http://blog.ericgoldman.org/archives/2011/10/ardis_health_v.htm.

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