Thursday, June 20, 2013

Arkansas Passes Law Restricting Employer Access to Employee Social Media (Act 1480)

On April 22, 2013, Arkansas passed Act 1480 and joined California, Illinois, Maryland, Michigan, New Mexico, and Utah as a state limiting or prohibiting employer access to the social media accounts of employees and prospective employees.

The new law prohibits employers from requiring, requesting, suggesting, or causing a current or prospective employee to:

(1) Disclose his or her username and password to the current or prospective employee’s social media account;

(2) Add any employee, supervisor, or administrator to the list or contacts associated with his or her social media account; or

(3) Change the privacy settings associated with his or her social media account.

Ark. Code Ann. § 11-2-124(b). Employers may not retaliate against an employee or prospective employee, or fail or refuse to hire a prospective employee for exercising these rights. Id. at § 11-2-124(c).

Act 1480 also contains potential safe-harbors for employers. It does not prohibit an employer from viewing information publically available on the internet, or prevent an employer from complying with “the requirements of federal, state, or local laws, rules, or regulations or the rules or regulations of self-regulatory organizations.” Id. at § 11-2-124(e)(1).

Employers can also request access to an employee’s social media account in connection with certain “formal” investigations and proceedings. Nothing in the proposed statute:

Affects an employer’s existing rights or obligations to request an employee to disclose his or her username and password for the purpose of accessing a social media account if the employee’s social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee’s violation of federal, state, or local laws or regulations or of the employer’s written policies.

Ark. Code Ann. § 11-2-124(e)(2)(A).

Act 1480 also presents a number of challenges and compliance pitfalls for employers. Those will be discussed in the next post. However, under the Arkansas Social Media Statute, one thing is clear: employers can no longer ask current or prospective employees for blanket access to their social media accounts.

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