By: Ty Hyderally, Esq., Francine Foner, Esq., and Adela Barbura

Protecting employees’ social media accounts is crucial to maintaining employees’ privacy rights in an era where personal and professional lives often intertwine online. On March 12, 2024, employers in New York will be barred from requesting or gaining access to the personal social media accounts of employees and prospective employees. In an effort to strengthen privacy rights, New York Governor Kathy Hochul signed Assembly Bill (A)00836 and Senate Bill (S)021518A (hereinafter collectively referred to as “the Bill”) into law on September 14, 2023, which introduced measures to limit employers’ ability to access the personal social media accounts of employees and job applicants. New York now joins several other states, including New Jersey, Michigan, Illinois, California, and Connecticut, that have legislation governing the access to social media and personal accounts of employees and job applicants. In fact, some of these state laws have been in existence for over a decade.

Under the new Bill, covered employers are prohibited from requesting, requiring, or coercing any employee or job applicant to: (1) disclose any username, password, or other authentication information for accessing a social media or personal account; (2) access the employee’s or applicant’s personal account in the presence of the employer; or (3) reproduce any photographs, videos, or other information contained within the personal account. Furthermore, an employer is barred from discharging, disciplining, or otherwise penalizing an employee or job applicant who refuses to disclose protected information or grant access to their personal accounts. Moreover, any threat from the employer to carry out such actions is also strictly prohibited.

The Bill broadly defines “personal account” as “an account or profile on an electronic medium where users may create, share, and view user-generated content” that is used by employees or job applicants “exclusively for personal purposes.” It is important to note that the new Bill will not prohibit employers from requiring that employees provide login information for company accounts used for business purposes, i.e., “nonpersonal accounts.” Further, the new Bill does not preclude employees or job applicants from “voluntarily adding an employer, agent of the employer, or employment agency to their list of contacts associated with a personal internet account.”

However, the Bill does provide employers with several exemptions that permit access to an employee’s social media accounts.  Employers may view, access, or utilize “information about an employee or applicant that can be obtained without any required access information” or that is public information. In addition, for the purposes of investigating misconduct, an employer can access photographs, video, messages, or other information in an employee’s personal social media account, if the employee voluntarily shares or provides access to the same to his or her employer.

Employees have a right to maintain a boundary between their professional and private lives, and shielding their social media accounts from employer intrusion preserves this essential privacy. This new law fosters a work environment that respects the individual autonomy and personal space of employees, contributing to a healthy and trusting employer-employee relationship. For more information, please see the full text of Assembly Bill (A)00836 and Senate Bill (S)021518A.

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