A new law recently went into effect in New York restricting employers from requesting or accessing employees’ and applicants’ personal social media accounts. Effective March 12, 2024, New York employers may not require, request or coerce an employee or applicant to (1) disclose their social media or electronic communication user names, passwords, or login information; (2) access their personal accounts in the presence of the employer; or (3) reproduce any posts, including photographs, videos, or other information, from personal accounts. Additionally, an employer cannot discipline, discharge or retaliate against an employee or applicant for refusing access to their personal accounts.
The law contains several notable exceptions that permit employers access to:
- user names and passwords to nonpersonal accounts that provide access to employers’ internal computer or information systems
- accounts where the employee voluntarily added an employer to their list of contacts associated with a personal account
- accounts used for business purposes where prior notice was given of the employer’s right to request or require such access
- accounts known to an employer to be used for business purposes
- electronic communications devices paid for in whole or in part by the employer where the payment was conditioned on the employer’s right to access, the employee had prior notice, and explicitly agreed to such conditions (employers are not allowed to access personal accounts on the device)
- comply with federal, state or local law or a court order
The law does not prevent employers from accessing information about an employee or applicant that is publicly available. Employers can also view social media posts or messages that an employee or third party voluntarily shares with an employer for the purpose of reporting or investigating misconduct. Employers can still restrict or prohibit an employee’s access to certain websites while using an employer’s network or an electronic communications device paid for in whole or part by the employer.
Note also that New York Legal Activities Law prohibits discipline or discrimination based on the participation in lawful or protected activity including political activities, legal recreational activities, legal use of consumable products (such as cannabis or tobacco) before or after working hours, and certain rights related to union activity.
Employers should review employment, hiring and social media policies and ensure proper notice is provided to employees about accessing “nonpersonal” or company accounts and company-paid-for devices.
About the Author: Ralph A. Somma
Ralph A. Somma is an experienced employment lawyer from Long Island, New York who has been precticing labor & employment law exclusively for 30 years.
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