The Wisconsin Legislature recently passed 2013 Wisconsin Act 208, which adds certain restrictions on the ability of employers, educational institutions, and landlords from requiring or obtaining access to social media and other personal accounts of their employees, prospective employees, students, and tenants.
Under the terms of the new statute, employers may not request or require an employee or applicant to disclose “access information” such as password and username for their personal accounts, including social media accounts. Likewise, employers are prohibited from terminating the employment of, or otherwise discriminating against, an employee who fails to provide such information when requested. They are also prohibited from refusing to hire an applicant for failure to disclose.
Employers are not prevented from requesting or requiring an employee to provide their information in order for “the employer to gain access to or operate an electronic communications device supplied or paid for in whole or in part by the employer.” In other words, that information may be sought if giving the employee a phone. Likewise, employers may gain access to accounts provided by the employer or used for the employer’s business.
However, the exact parameters of the access the employer may request has yet to be tested, and it seems likely the right to information would only extend to items necessary to engage the device. In other words, a cell phone supplied by an employer may have an exchange email service installed, and the employer would need to have the password and username for such an account.
On the other hand, the employer-provided phone need not have Facebook’s application loaded on it. If the employee does download the application, is the employer now entitled to account information from that employee? Similarly, if an employee voluntarily markets an employer’s business through a personal Facebook account, is it now “used for the employer’s business” such that access is permitted? Those questions will have to be answered going forward. The statute does permit an employer to restrict access to personal accounts on employer-provided devices to avoid any confusion over these issues.
Other exceptions to the general rule prohibiting access include an employer’s right to gain information on accounts in order to assisting in discharging or disciplining an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal account without the employer’s authorization. Furthermore, in certain circumstances such access may be required by law (as in the case of financial advisors using electronic accounts in pursuit of their job), and Wisconsin has made an exception for such access.
The restriction also does not apply to viewing or accessing information about an employee online for which “access information” such as a username and password is not required. In other words, an employer may search for publicly available information about its employee online and view it. An employer is also permitted to require an employee to disclose a personal e-mail address (but not demand access information for that account).
If an employer inadvertently obtains access information for an employee’s personal account when an employee accesses an account on an employer-provided device, they are not liable simply because it now has access information on the account. However, an employer would become liable if it used that information to actually access the given account.
An employee who is discharged or otherwise discriminated against, or an applicant for employment who is not hired, because he or she would not provide requested personal account information may file a complaint with the department of workforce development. That department will process the complaint in the same manner as other employment discrimination complaints. If a violation is found, the department also has the right to enforce violations with all the same provisions applying to any other employment discrimination case. In addition, any person who violates these new restrictions may be fined up to $1,000.
Wisconsin’s ban on seeking access to personal account information takes effect immediately. Employers must update their practices and, where necessary, their employment handbooks and other documents to comply. It is the 12th state to adopt such a law.
This information is general in nature and should not be construed as tax or legal advice.