Wisconsin’s new Social Media Protection Act is significant for employers. There have been several high-profile cases around the nation in the last several years that have challenged the employer practice requiring that their employees provide the employer with password information to the employee’s personal Internet accounts. Such information allows the employer to access the employee’s personal social media accounts, like Facebook. Facebook itself has spoken out against the practice.

Now, Wisconsin has joined a small-but-growing number of states that prohibit an employer from requesting or requiring an employee or job applicant, as a condition of employment, to disclose access information to his or her personal Internet account or to otherwise grant access to or allow observation of that account. The new law, which may be found here, also prohibits an employer from discharging or discriminating against an employee or applicant who refuses to disclose such access information.

“Access information” is defined under the law as a user name and password or any other security information that protects access to a personal Internet account.

There are several important exceptions to the law. The law does not prohibit an employer from:

  • Requesting or requiring an employee to disclose access 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 or in order for the employer to gain access to an account provided by the employer, obtained by virtue of the employee’s employment relationship with the employer, or use for the employer’s business purposes. Thus, if an employer sets up a LinkedIn account for the employee, the new law allows the employer to require the disclosure of access information.
  • Discharging or disciplining an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account without the employer’s authorization.
  • Subject to some exceptions, conducting an investigation or requiring an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account, if the employer has reasonable cause to believe that such a transfer has occurred. Similarly, the employer is allowed in instances of alleged employment-related misconduct or a violation of the employer’s work rules as specified in an employee handbook to request access information, if the employer has reasonable cause to believe that activity on the employee’s personal Internet account relates to that misconduct or violation of a work rule. In these situations, an employer may require an employee to grant access to the employee’s personal Internet account, but may not require the employee to disclose access information for that account.
  • Restricting or prohibiting an employee’s acts as to certain Internet sites while using an electronic communications device supplied or paid for in whole or in part by the employer or while using the employer’s network or other resources.
  • Viewing, accessing or using information about an employee or applicant for employment that may be obtained without access information or that is available in the public domain.
  • Complying with a duty to screen applicants for employment prior to hiring or a duty to monitor or retain employee communications that is established under state or federal laws, rules, or regulations or the rules of a self-regulatory organization, as defined in 15 USC 78c (a)(26).
  • Requesting or requiring an employee to disclose the employee’s personal electronic mail (email) address.

Considerations for Employers:
Although many Wisconsin employers may not have been requiring employees or applicants to disclose access information prior to the enactment of the new law, wise employers should consider how to lawfully regulate its employees’ use of the Internet and social media while on the job. The new law assists the employer in setting enforceable guidelines.

In some instances, it may be necessary for an astute employer to regulate employee communications with respect to the employee’s personal social media sites in matters that pertain to the employer’s business, like protecting the employer’s confidential information. The new law assists an employer in drafting and implementing such policies, although some questions remain. An employer is advised to review its employee handbook, Internet use policies and business practices to make sure that they are consistent with the new Wisconsin law Protection Act Protection Act

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