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New Oklahoma Law Restricts Employer Access to Employee, Job Applicant Social Media Accounts




by:
Jackson Lewis P.C. - White Plains Office

 
June 9, 2014

Previously published on June 3, 2014

Key points:

  •  Effective Nov. 1
  •  Employers barred from demanding personal account information

Oklahoma has joined the growing list of states prohibiting employers from requesting or demanding access to the personal social media accounts of employees or job applicants. Signed into law by Governor Mary Fallin, H.B. 2372, becomes effective November 1, 2014.

Prohibitions

The new law prohibits employers from requesting or demanding usernames or passwords from employees or applicants to their personal social media accounts.

It also makes clear that Oklahoma employers cannot demand that employees or applicants access those accounts in the presence of the employer, allowing the employer to see the contents of those accounts.

As in other states with similar laws, employees and applicants that refuse to provide access to their personal social media accounts generally cannot be fired, disciplined, denied employment, or otherwise penalized.

Exceptions

Employers, however, may request or demand access information to information systems or electronic communications devices owned or subsidized by the employer, as well as any accounts or services provided by the employer “or that the employee uses for business purposes.” It will be interesting to see whether this language will be interpreted to apply to accounts, such as LinkedIn, which employees might use for business purposes, e.g., connecting with customers or clients of the employer.

The new law also does not prohibit employers from engaging in certain investigations, such as where the employer has specific information about activity on the employee’s personal social media account and the investigation is for the purpose of ensuring compliance with applicable laws regulatory requirements, or prohibitions against work-related employee misconduct.

The law protects Oklahoma employers that inadvertently acquire the access information for employee personal social media accounts, so long as the employer does not use that information to access the accounts. However, the law states:

Neither this section nor any other Oklahoma law shall prohibit an employer from reviewing or accessing personal online social media accounts that an employee may choose to use while utilizing an employer’s computer system, information technology network or an employer’s electronic communication device.

While employers cannot ask employees for their usernames or passwords to personal social media accounts, it appears employers can monitor the activities and communications employees make in their personal social media accounts when the employees access their accounts through employer-provided information systems, networks or devices. Employer should exercise caution here, as the prohibitions of federal law, such as the Stored Communications Act, and of the laws of other states, thereby may be triggered.

***

Employers may have legitimate needs to access employee or applicant personal social media or other online accounts, as in cases involving theft of trade secrets, disclosures of confidential information and similar reasons. However, as state laws proliferate, employers, particularly those with operation in multiple states, should be careful in determining what the applicable law permits them to do.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Jackson Lewis P.C.
 
White Plains Office
Practice Area
 
Labor & Employment
 
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