New York Law Aims to Safeguard Employee’s Social Media Privacy

On September 14, 2023, New York Governor Kathy Hochul signed a new law, A.836, which prohibits employers from requesting or requiring usernames, login information, and passwords, of personal electronic accounts as a condition of hiring, employment, or for use in a disciplinary action.  Moreover, the new law prohibits employers from retaliating against employees and applicants who refuse to provide that information.  More specifically, the new law prohibits employers from requesting, requiring, or coercing employees and job applicants to:

• Disclose their username, password, or other log-in information used to access their personal account through an electronic communications device;
• Access their personal account in the employer’s presence; or
• Reproduce photos, videos, or other information in their personal account through means prohibited under the law.

Under A.836, “personal account” is defined as an account or profile exclusively for personal purposes, where users can create, share, and view user-generated content (videos or photos), blogs, podcasts, instant messages, or internet website profiles or locations, which are used by an employee or applicant exclusively for personal purposes. Further, “electronic communications” includes any device that uses electronic signals to create, transmit, and receive information (computers, phones, PDAs, and other similar devices).  Finally, under the new law, “employers” are defined very broadly to include all people or entities engaged in business in New York state, the state of New York and any political subdivision or civil division thereof, as well as public authorities, commissions, or public benefit corporations as they are considered to be agents, representatives, or designees.

However, the new law contains exceptions to allow employers to request or require access to employee’s accounts, both personal and/or non-personal, under specific circumstances; these circumstances include:

• Necessity to abide by federal, state, or local law;
• It is a non-personal account that provides the employer access to the employer’s internal computer or information systems;
• The non-personal accounts were provided by the employer and used for business purposes;
• It is a non-personal account that the employer knows is used for business purposes;
• Necessity to comply with a court order; or
• To restrict or prohibit employees from accessing certain websites while using the employer’s network or electronic communications devices.

Concerning access to employees’ electronic communication devices, employers may request or require access to them as long as the employer paid for the device, either in whole or in part; the employer’s payment for the device was conditioned on the employer retaining the right to access the device; the employee explicitly agreed to such condition; and, the employee was given prior notice.  However, while the employer may be able to access the electronic communication device, they may not access any personal accounts on said device.

Moreover, employers can retain the ability to access, obtain, or provide information from an employee’s account to comply with a court order and to restrict or prohibit employees from accessing certain websites while using the employer’s network or electronic communications devices.

Finally, under A.836, employers may view, access, or utilize information about an employee or job applicant that is accessible without any required login information or is available in the public domain.  Additionally, employers may access or utilize information regarding an employee or applicant if it was voluntarily shared by an employee, client, or third party, with the purpose of obtaining reports of misconduct or to investigate misconduct or other information.

If you have questions regarding how A.836 may impact you and your employment once in effect, please contact Borrelli & Associates, P.L.L.C., to schedule a free consultation through one of our websites, www.employmentlawyernewyork.com, www.516abogado.com, or any of our phone numbers: (516) 248-5550, (516) ABOGADO, or (212) 679-5000.