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ERAU Employer Access to Social Media Accounts State Laws Chart

Embry Riddle Aeronautical University

Question Description

I’m studying for my Computer Science class and don’t understand how to answer this. Can you help me study?

Hi,

Here are the instructions for this discussion:

The Situation

Sally calls and sounds very worried. She indicates that the State of

Florida is considering legislation to restrict employers from accessing

the social media accounts of employees and perspective employees. You

reply, “That’s bad! This is probably a result of the senator whose

account was hacked and doubled-exposed, which caused him to lose the

election for Governor. It appears he was hacked by “hacktivists” through

his employer’s dedicated Human Resource account. Sally, you know that I

built the entire background checks for prospects and employees on that

system, and this could cause us to have an increase in HR costs, as well

as encounter legal liability for negligent hiring through dependence on

an out-sourced background check.

You can find more information about someone through a simple Internet search, since everyone so easily posts, texts, and Instagrams their lives on social media. It’s the best way to avoid hiring and rehiring employees who don’t fit the employee profile we are looking for to staff our restaurant." Sally responds that she agrees and suggests you research the issues to determine if there is legislation that the state will replicate. “Boy-oh-boy, some people just don’t understand that no one cares about privacy anymore. If they did, why would so many people expose themselves on the Internet? It’s not like it’s in the Constitution.”

You state, “Sally, I know you’re just kidding. But you are right, it’s not in the United States Constitution. It does not contain any explicit right to privacy. However, The Bill of Rights, expresses the concerns of James Madison along with other framers of the Constitution for protecting certain aspects of privacy. The issue of whether the Constitution actually protects the right to privacy in ways not described in the Bill of Rights is a controversial subject. Originalists often argue that there is no general right to privacy within the constitution. However, as early as 1923, the Supreme Court, recognized through decisions that the liberty given in the 14th amendment guarantees a relatively broad right of privacy.”

“With every Internet company collecting more information on you than the CIA, (No, Sally, the real one, not your school, The Culinary Institute of America) how could there ever be an expectation of privacy?” Sally then snapped, “We better look into this right away, as there may be more to this than we think.” “Not only that,” Sally added, “our table ordering and pay APP is intended to gain access to customer's mobile devices so they can take selfies to post to our Blog and connect with our system each time it’s sent from the device. Our advertising scheme is tied to that system. Oh my, this is really serious!”

Your Initial Post

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Massie, Raymond 6/6/2019 For Educational Use Only Employer Access to Social Media Accounts State Laws..., Practical Law Practice... Employer Access to Social Media Accounts State Laws Chart: Overview by Practical Law Labor & Employment Law stated as of 18 Aug 2018 • Arkansas, California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maine, Maryland, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, USA (National/Federal), Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin An at-a-glance Chart describing state legislation prohibiting private employers from asking employees and job applicants to provide access to their social media accounts and reveal usernames and passwords, with certain exceptions. Several states have enacted laws addressing employer access to current and prospective employees’ social media accounts. These laws, which are designed to protect employees’ privacy rights, vary in their specific provisions. With certain exceptions, the laws generally prohibit employers from asking employees and prospective employees to provide their usernames and passwords to personal social media accounts, with certain exceptions. This Chart lists the states that have enacted social media account access laws addressing private employers. It does not include state laws that only address academic institutions aimed at protecting students’ rights to privacy. The Chart summarizes key provisions of the laws, including: • Prohibited actions. Employer conduct that is prohibited by the law. • Limitations and exceptions to the law. Circumstances in which employers may seek access to employees’ or applicants’ social media accounts. For more information about social media as it impacts the workplace, see Social Media Usage Toolkit. State Prohibited Conduct Limitations and Exceptions worldwide.erau.edu All rights are reserved. The material contained herein is the copyright property of Embry-Riddle Aeronautical University, Daytona Beach, Florida, 32114. No part of this material may be reproduced, stored in a retrieval system or transmitted in any form, electronic, mechanical, photocopying, recording or otherwise without the prior written consent of the University. Arkansas (A.C.A. § 11-2124.) Seek Personal Social Media Account Information Employers may not “require, request, suggest, or cause” employees or prospective employees to do any of the following regarding a personal social media account: • Disclose a username and password. • Add an employee, supervisor, or administrator to the account’s list of contacts. • Change privacy settings. Employer-Related Social Media Accounts Social media accounts associated with the employer are not considered personal and are exempted from this law. These include social media accounts that are either: • Opened by an employee at the employer’s request. • Provided to an employee by an employer such as: • a company email account; or • other software program owned or operated exclusively by an employer. Retaliation Employers may not: • • Take action against, or discharge, discipline, or otherwise penalize current employees for exercising their rights not to reveal personal social media account information. Fail or refuse to hire prospective employees who exercise their rights not to reveal personal social media account information. • Setup by an employee on an employer’s behalf. • Setup by an employee to impersonate an employer through the use of the employer’s name, logos, or trademarks. Public Information Employers are not prohibited from viewing information about current or prospective employees that is publicly available on the internet. Legal Compliance The law does not prevent employers from complying with the requirements of either: • Federal, state, or local laws, rules, or regulations. • The rules or regulations of self-regulatory organizations. Investigation of Misconduct Employers may request an employee to disclose a personal social media account’s username and password if the employee’s social media account activity is reasonably believed to be relevant to the employer’s formal investigation or related proceeding into the employee’s alleged violation of any of the following: • Federal, state, or local laws and regulations. • The employer’s written policies. In that case, the employee’s username and password must only be used for purposes of that formal investigation or a related proceeding. Inadvertent Receipt of Information An employer is not liable if it inadvertently receives the username, password, or other login information to an employee’s social media account through either of the following methods, as long as the employer does not use the information to gain access to the account: • The use of an electronic device the employer provided to the employee. • A program that monitors an employer’s network. California Seek Personal Social Media Information Investigation of Misconduct (Cal. Lab. Code § 980.) Employers may not require or request employees and job applicants to: Employers may request an employee to divulge personal social media it reasonably believes to be relevant to an investigation of an employee’s misconduct or unlawful activity, provided that the employer uses the social media solely for purposes of that investigation or a related proceeding. • Disclose a username or password to access personal social media. • Access personal social media in the presence Employer-Issued Device of the employer. • Divulge personal social media, unless subject Employers may require or request an employee to to an exception. disclose a username, password, or other method to access an employer-issued electronic device. Retaliation Employers may not discharge, discipline, threaten to discipline, or otherwise retaliate against an employee or applicant for refusing to comply with an employer’s request that violates this law. Colorado (C.R.S. § 8-2127.) Seek Personal Social Media Account Information Employers may not “suggest, request or require” employees or applicants to do any of the following regarding a social media account: Employer Systems Employers are permitted to require employees to disclose usernames, passwords, or other means for accessing non-personal accounts or services that provide access to the employer’s own information systems. • Disclose a username, password, or other means for accessing a personal account. Investigation of Misconduct • Add anyone, including the employer or his agent, to the account’s list of contacts. The law does not prevent employers from: • Change privacy settings. Retaliation • Conducting an investigation to ensure compliance with applicable securities or financial law or regulatory requirements based on the receipt of information about the use of a personal website, internet website, web-based account, or similar account by an employee for business purposes. • Investigating an employee’s electronic communications based on the receipt of information about the unauthorized downloading of an employers’ proprietary information or financial data to a personal website, internet web site, web-based account, or similar account by an employee. Employers may not: • Discharge, discipline, or otherwise penalize or threaten to discharge, discipline, or otherwise penalize an employee for refusing to: • disclose personal account information; • add the employer to the account’s list of contacts; or Workplace Policies • • Connecticut (Conn. Gen. Stat. Ann. § 3140x.) change privacy settings. Fail or refuse to hire an applicant for refusing to: • disclose personal account information; • add the employer to the account’s list of contacts; or • change privacy settings. Seek Information Regarding a Personal Online Account Employers are prohibited from taking any of the following actions regarding a personal online account: • Requesting or requiring employees or prospective employees to disclose usernames and passwords for their personal online accounts. • Requesting or requiring employees or prospective employees to authenticate or access a personal online account in the employer’s presence. • Forcing employees or prospective employees to invite the employer or accept the employer’s invitation to join a group related to the employee’s personal online account. Retaliation or Discrimination Employers are prohibited from disciplining or threatening to discipline any employee in retaliation for the employee’s refusal to comply Employers are not prohibited from enforcing existing personnel policies that do not conflict with this law. Workplace Discipline Employers are not prohibited from disciplining, discharging, or penalizing an employee or applicant for sending the employer’s confidential or proprietary information or financial data to or from a personal online account, without the employer’s permission. Business-Related Accounts and EmployerIssued Devices Employers are not prohibited from requesting or requiring the username and password or other authentication means for accessing: • An account or service: • provided by the employer; • obtained through the employment relationship; or • used for the employer’s business purposes. with a request that violates this law. • Refusal to Hire An electronic communications device paid for in whole or in part by the employer. Investigations Employers are prohibited from failing or refusing to hire an applicant because of the applicant’s refusal to comply with a request that violates this law. Employers are not prohibited from conducting investigations where there is: • • Specific information about activity on the employee’s personal online account in order to ensure compliance with: • applicable laws; • regulatory requirements; or • prohibitions against work-related employee misconduct. Specific information about an unauthorized transfer of the employer’s proprietary or confidential information or financial data to an employee’s personal online account. An employer undertaking an investigation may require an employee or applicant to provide access to a personal online account for the above purposes, but may not require the employee or applicant to disclose the username and password or other authentication means for accessing the personal online account. Employer-Provided Devices and Systems Employers are not prohibited from monitoring, accessing, viewing, or blocking electronic data that is either: • Stored on an electronic communications device partly or entirely paid for by the employer. • Traveling through or stored on an employer’s network, in compliance with state and federal law. Compliance with Various Laws This law does not prohibit employers from complying with the requirements of any of the following: • State or federal laws or regulations. • Rules of self-regulatory organizations. • Delaware (Del. Code Ann. tit. 19, § 709A.) Seek Personal Social Media Account Information Case law. Employer-Related Social Media Accounts Employers are not prohibited from: Employers may not require an employee or job applicant to do any of the following regarding a personal social media account: • Disclose the social media accounts’ username or password. • Access the social media accounts while in the employer’s presence. • Use personal social media as an employment condition. • Divulge information contained on social media accounts. • Add, invite, or accept an invitation to add any individual, including the employer, to the employee’s personal social media account or to join a group associated with the employee’s or applicant’s personal account. • • Requiring an employee to provide access to an electronic communication device provided by or paid for by the employer. • Requiring an employee to provide access to an account or service: • Change the privacy settings on a personal social media account to affect third-party access to the account’s content. Retaliation • provided by the employer; • obtained by the employee through the relationship with the employer; or • used by the employer for businessrelated purposes. Monitoring, accessing, reviewing, or blocking electronic data stored on: • the employer’s network; or • an electronic communication device provided or paid for by the employer. Public Information Employers may not retaliate or take adverse actions against employees for refusing to comply with an Employers are not prohibited from accessing employer request that violates this law. information that is in the public domain. Compliance and Investigation Employers are also not prohibited from either: • Complying with pre-hiring screening requirements. • Requiring or requesting an employee to provide social media access information the employer believes to be relevant to an investigation of allegations of the employee’s misconduct or violation of laws or regulations. Illinois Seek Social Networking Website Information Workplace Rules and Monitoring (820 ILCS 55/10.) Employers may not: Employers are not prohibited from: • Request or require employees or prospective • Maintaining workplace policies governing the use of the employer’s electronic equipment, including: employees to provide any password or related account information to gain access to the individual’s account or profile on a social networking website. • Demand access in any manner to an employee’s or prospective employee’s account or profile on a social networking website. • • internet use; • social networking site use; and • email use. Monitoring the use of the employer’s electronic equipment and email. Public Information Employers are also not prohibited from obtaining information about employees or applicants that is in the public domain. Duty to Screen Applicants and Retain Employee Communications Employers are not prohibited from complying with a duty to screen applicants prior to hiring, or to monitor or retain employee communications as required under relevant laws, as long as the password, account information, or access the employer is seeking relates to a “professional account” and not a “personal account.” Louisiana Seek Access to Personal Online Accounts (La. R.S. § 51:1953.) Employers may not request or require employees or applicants to disclose their username, password, or An employer may still: other authentication information to gain access to personal online accounts. • View or access information about an employee available in the public domain. Retaliation • Obtain an applicant’s or employee’s email address. Employers may not retaliate against an employee or applicant who fails to disclose protected information by, for example: • Discharging. • Disciplining. • Failing to hire. • Otherwise penalizing or threatening to penalize the employee. Public Information; Employer-Provided Devices, Accounts, or Services • Request or require access to: • an electronic communication device the employer pays for or supplies; • an account or service the employee obtained because of the relationship with the employer; or • an account or service used for the employer’s business purposes. Workplace Discipline, Investigations, and Monitoring Employers are not prohibited from: • Disciplining or discharging an employee for sending confidential or proprietary information or financial data to a personal online account without permission. • Conducting or requiring cooperation in an investigation: • where there is specific related information on an employee’s personal online account; • to ensure compliance with applicable laws, regulations, or prohibitions; or • where the employer has specific information about an unauthorized transfer of proprietary, confidential, or financial information to a personal online account. • Restricting or banning access to certain websites while using an employer-supplied electronic communications device. • Screening applicants or monitoring or retaining employee communications under applicable laws, rules, or regulations. Inadvertently Obtained Information; Employee Self-Disclosure An employer will not be liable if: • It inadvertently obtains an employee’s or applicant’s authentication information using a device or program that monitors an employerprovided network or device. However, an employer may not use this information to access the employee’s personal online account. • An employee or applicant voluntarily selfdiscloses. The law does not provide for: Maine Seek Access to a Personal Account or Service • Any penalty against the employer for violation. • A private right of action for the individual. Public Information; Employer-Provided Devices or Accounts (26 M.R.S. §§ 615–619.) Employers are prohibited from taking the following actions regarding an employee’s social media accounts: • • • Maryland Requiring or coercing an employee or job applicant to: • disclose the social media accounts’ usernames or passwords; • access the social media accounts while in the employer’s presence; or • divulge information contained on the social media accounts. Employers are not prohibited from: • Accessing information that is in the public domain. • Complying with: Requiring or causing an employee or applicant to: • add anyone as a contact on a personal social media account; or • alter settings that affect a third party’s ability to view the contents of a personal social media account. • Retaliating or taking adverse actions against employees for refusing to comply with an employer request that violates this law. Seek Access to a Personal Account or Service (Md. Code Ann., Employers may not request or require that an Lab. & Empl. § 3- employee or applicant disclose usernames, 712.) passwords, or other means for accessing personal accounts or services through an electronic communications device. • pre-hiring screening requirements; • duties to retain employee communications necessary to supervise financial and regulatory communications for banking, insurance, or securities-related business purposes; or • rights and obligations to require or request an employee to provide social media access information the employer believes to be relevant to an investigation of allegations of the employee’s misconduct or violation of laws or regulations. Creating and maintaining lawful work policies governing the use of the employer’s electronic equipment, including requirements that employees provide usernames and passwords for the employer to: • access employer-issued electronic devices; or • employer-provided software or email accounts. Employer Systems Employers are expressly permitted to require employees to turn over login information for nonpersonal accounts and services that provide access to the employer’s own computer or information systems. Retaliation Investigation of Misconduct Employers may not discharge, discipline, or otherwise penalize an employee, or threaten to do so, for the employee’s refusal to disclose protected login information. Employers are not prevented from investigating employees based on the receipt of information about: Fail to Hire Employers may not fail or refuse to hire an • The use of a personal website, internet website, web-based account, or similar account by an employee for business purposes, if the investigation is for the applicant as a result of the applicant’s refusal to disclose protected login infor ...
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Final Answer

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STATE THE CASE-STUDY FACTS HERE
A senator lost an election as a result of hacking into persona information available on his
employer's database. There is no clear legislation in Florida governing the employers' access to
employees' social media accounts. Therefore, Sally suggested for the search of related
legislation that Florida might copy. Sally is worried that the law might affect their table
ordering and pay APP.

STATE THE LAW THAT APLIES HERE
The state law of Oklahoma best fits this case study.

YOUR ANALYSIS HERE
There is an issue as to whether the senator lost the election because of his sensitive personal
information that was not protected by his employer. The hackers gained access to his
employer's dedicated human resource account and made his employment details public. As a
result, the senator lost elections.

Issue


First state the question or problem that you are trying to answer (what might bring the
parties into court). This can be in the form of a question or a statement depending on
what your reader prefers. Examples:
o “There is an issue as to whether contact occurred when the plaintiff inhaled the
second-hand smoke.”
o “Does contact occur when one inhales second-hand smoke created by another?”



However, in legal memos, one may state the conclusion up front (in case the reader is
too busy to read through the entire analysis. Some professors also prefer that you state
the conclusion up front.

Rule
...

University of Virginia

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