We recall the following well-publicized Facebook posting from a number of years ago: The photograph of a young man, in a very smoke-filled room, wearing a Grateful Dead t-shirt and holding a very large marijuana cigarette. The caption read: “I like to smoke a giant spliff on week-ends.” Needless to say, any employer who viewed this posting would likely not have hired this individual.
In the years following, it has become common practice for employers to view the social media postings of job applicants and employees and totake action accordingly in response to postings they found objectionable.
Effective March 12, 2024, New York employees—and job applicants—have a right to keep their social media accounts private from employers. On September 14, 2023, New York Governor Kathy Hochul signed legislation (A.836) to restrict employers from requesting access to an employee’s or job applicant’s private social media account. New Yorkers can now enjoy an expectation of privacy posting on social media where their accounts are used exclusively for personal purposes.
New York’s New Social Media Law
The law states that an employer cannot request, require, or coerce any employee or job applicant to (i) disclose any user name and password used to access a personal account; (ii) access the employee’s or applicant’s personal accountin the presence of the employer; or (iii) reproduce any photographs, video, or other information within the employee’s or applicant’s personal account.
The law pertains to private social media accounts accessible through any “electronic communications device,” meaning any device with electronic signals to transmit information. As defined by the legislation, such devices include computers, telephones, and personal digital assistants.
No Retaliation
Importantly, an employer cannot retaliate against an employee or job applicant for refusing access to their personal social media accounts. The law states that an employer may not fire or discipline an employee for failing to disclose private social media information. Moreover, an employer cannot refuse
to hire an applicant because the applicant refuses to disclose any information regarding their personal accounts.
The law provides that it will be an affirmative defense to any legal action under the law that the employer acted to comply with the requirements of federal, state, or local law.
Exclusions
Employers should take note of several significant carve-outs in the new law. First, an employer can access information to a social media account provided by the employer or used for the employer’s business purposes. The employer, however, must provide prior notice of the employer’s right to request such access. Second, an employer can access an employee’s electronic communications device when it is paid for in whole or in part by the employer and the employer provided prior notice of its right to require access to the device. Finally, an employer can prohibit an employee from using certain websites while on the employer’s network or electronic communications device, but the employer must provide prior notice of its right to do so.
Additional Social Media Protection for Employees and Job Applicants
Perhaps most significantly, while New York’s new social media law provides a measure of privacy to employees and applicants, employers still may lawfully access public social media or other information about the employee generally available without any required log-in information. Nonetheless, those with public social media profiles also benefit from some legal protection.
Significantly, the New York Legal Activities Law prohibits employee discipline or job applicant discrimination based on an individual’s participation in lawful or “protected” conduct or activity. The following are considered protected activities: political activities, legal recreational activities, legal use of consumable products before or after working hours1, and membership in a union or the exercise of certain rights related to union activity.
Though these protected activities may or may not involve social media use, they extend to activities that an employee or applicant may picture or post about on their public social media page. Therefore, New York’s labor laws protect private social media accounts, and may afford some additional protection to public social media accounts depending on the activity.
What Employers Must Know and Do Now
New York’s new social media law does not take effect until March 12, 2014. However, employers must take note and modify their employment practices accordingly. This may entail revising hiring practices, rewriting employee social media policies, and providing notice to employees regarding coverage of and the exceptions to the new law. Under the new law, employees and job applicants will enjoy greater digital privacy, but should also keep in mind that employers can access content posted on public social media profiles.
ENDNOTES
- An employee’s off-duty use of marijuana has generally been legal in New York since 2021.
About the Authors
BENNETT PINE is a shareholder in Anderson Kill’s New York and Newark offices and is chair of the firm’s employment & labor group. Mr. Pine has broad-based labor and employment law experience
and regularly plays a hands-on role offering preventative maintenance advice and counseling to employers in the full range of legal issues affecting the workplace.
MADISON S. MARLOW is a Law Clerk (pending admission) in Anderson Kill’s New York office. She focuses her practice on insurance recovery, exclusively on behalf of policyholders.