Authored by attorney J. Brandon Sieg
A new law went into effect on July 1, 2015, that limits the ability of Virginia employers to demand access to their employees’ social media accounts. Va. Code Ann. § 40.1-28.7:5. Virginia employers cannot discipline, discharge, threaten, or refuse to hire an employee based on the employee’s exercise of these rights.
The primary thrust of the law is to prohibit employers from requiring an employee to provide access to the employee’s social media accounts. This includes requiring the employee to turn over his username and password as well as requiring the employee to add the employer (or supervisor or administrator) to the list of contacts maintained on the employee’s social media account. The law does not, however, prohibit the employer from viewing publicly available information about the employee.
This statute does not protect an employee who impersonates his employer through a deceptive social media account. It also does not prevent the employer from demanding access to an account that is provided by the employer or an account that the employer asked the employee to establish.
The statute considers the possibility that an employer’s hardware or software might inadvertently receive an employee’s protected social media username and password. Such inadvertent possession of this protected information is not prohibited, but the employer is forbidden from subsequently using the information collected by its devices and programs.
An employer is also permitted to request an employee’s username and password in connection with a formal investigation or related proceeding if the social media account is “reasonably believed to be relevant” to that investigation or proceeding. The employer’s use of the employee’s username and password, must be limited to the purpose of the formal investigation or related proceeding.
In light of this new law, employers should carefully consider their practices to verify that they are not improperly obtaining access to their employee’s social media accounts. Above all, employers should be particularly careful not to take any action against an employee based on information that was improperly obtained from the employee’s social media account.
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