New Law Restricts Employer Access to Employees’ Personal Social Media Posts

Employers with employees in New York should take note that the state’s new social media law went into effect March 12^th. The legislation signed by New York Governor Kathy Hochul in September 2023, Assembly Bill (A) 00836 and Senate Bill (S) 02518A, effectively limits employers’ access to employees’ personal social media accounts. New York joins other states in a clear shift in online privacy towards protecting individuals from employer inquiries into their personal social media accounts.

Overview of the Law

The newly enacted law adds Section 201-i to New York’s Labor Law, which prohibits an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing an employee’s personal social media account, or requiring an employee to access a personal social media account in the employer’s presence. The term “personal account” is broadly defined to include those “exclusively used for personal purposes” on “electronic medium[s]” including various forms of “user-generated content” such as photographs, blogs, videos, podcasts, instant messages, or internet profiles. The law also prohibits employers from accessing employees’ personal accounts and reproducing posts from employees’ personal accounts. Finally, the law contains an anti-retaliation clause—employers may not discharge, discipline, or otherwise penalize an employee or applicant because of their refusal to disclose such protected information.

Exemptions

The law does allow for certain exemptions for employers. Non-personal accounts used for business purposes are exempt from this law, provided that “prior notice of the employer’s right to request or require such access information” was given to the employee. An employer is also not prohibited from accessing electronic communication devices “paid for in whole or in part by the employer where the . . . payment for such electronic communications device was conditioned on the employer’s right to access such device and the employee was provided prior notice of and explicitly agreed to such conditions.” Employers may further access accounts to comply with court orders and may restrict employees’ access to certain websites while they use an employer’s network or while using a device paid for by the employer.

Finally, and notably, employers are not prohibited from accessing information about an employee or applicant that “can be obtained without any required access information, that is available in the public domain.” This means that employers can still conduct screenings of an applicant’s or an employee’s publicly available online footprint.  Similarly, employers may still review information that is voluntarily shared with the employer. Employers should be cautious when making employment decisions based on an applicant or employee’s publicly available social media presence though, as New York’s off-duty conduct law, NY Labor Law § 201-d, prohibits discrimination based on someone’s participation in protected conduct or activity—which includes legal recreational and political activities as well as union membership.

Impact on Employers

In light of the new law, employers should review and update their handbook and policies regarding hiring procedures and social media usage to comply with the new law and to prohibit retaliation against employees and applicants who refuse to provide access to their personal social media accounts. Employers should also ensure that they provide proper notice to employees when accessing nonpersonal accounts or company devices.