Colorado Limits Employers from Demanding Employees, Applicants Private Social Media Information

Colorado Governor John Hickenlooper has signed legislation limiting employer access to employees’ and job applicants’ private social media information. Under the measure (HB 13-1046), effective upon signing on May 11, 2013, employers in Colorado may not “suggest, request or require” or cause employees or applicants to (i) disclose the means of accessing the employees’ or applicants’ personal account or service through the employees’ or applicants’ electronic communication device, or (ii) change their privacy settings for an associated social networking account.

Employers also are prohibited from compelling an employee or applicant to become a friend, contact or connection of the employer or the employer’s agent. Employers may not fail or refuse to hire applicants, or discipline or otherwise penalize employees, who refuse to provide access to their personal accounts or add the employers to their contacts.

The law, however, does not prohibit employers from requiring their employees to provide access, including user name and password, to non-personal accounts or services that allow access to employers’ information systems. It also does not prohibit certain employers (in specific industries, e.g., securities and finance, who have to comply with certain regulatory requirements) from conducting investigations concerning the use of personal websites, web-based accounts or similar accounts by an employee for business purposes. The same is true for investigations involving the unauthorized downloading of employer proprietary or financial information to a personal website, web-based account or similar account.

The new Colorado law does not provide for a private right of action for violations, but aggrieved persons may file a complaint with the Department of Labor and Employment, which may impose fines of up to $1,000 for a first offense, and not more than $5,000 for subsequent offenses.