The analysis by Joshua S. Bauchner and Jed M. Weiss, published on February 23, 2024, delves into the significant legal changes brought about by the signing of a new statute by Governor Kathy Hochul on September 14, 2023. This legislation, identified as New York State Senate Bill S2518A, marks a pivotal shift in employment law by explicitly prohibiting employers from demanding access to the private, personal social media accounts of job applicants and employees. This legislative action places New York alongside over twenty other states, such as California, Connecticut, Delaware, Maryland, and New Jersey, which have enacted similar laws to safeguard the digital privacy of individuals within the employment context.
The law, which is set to take effect on March 12, 2024, amends New York’s Labor Law by adding Section 201-i. It addresses the increasingly common practice of employers requesting or requiring access to personal and private social media accounts as part of their hiring process or during employment. This move comes in response to concerns over privacy invasion and the potential for discriminatory and unfair hiring practices stemming from such demands.
Key Provisions of the Law:
- Prohibition of Disclosure Requests: Employers cannot ask job applicants or employees to provide usernames, passwords, or other means of access to personal social media accounts.
- Definition of Personal Accounts: The law defines “personal accounts” broadly, including any social media profile used exclusively for personal purposes.
- Limitations on Employer Actions: It bars employers from requiring applicants or employees to log into their personal accounts in the employer’s presence or to share personal content from these accounts.
- Protection for Employees: Employers are not allowed to discipline or terminate employees for refusing to provide access to their private social media accounts.
- Exceptions for Business-Related Accounts: Employers may request access to accounts or devices used for business purposes under specific conditions, such as devices partially or wholly paid for by the employer, provided the employee has been notified and has acknowledged this in writing.
- Exclusions: The statute exempts certain categories of employment, such as those governed by the SEC, law enforcement, and certain government agencies, from its provisions.
The article also discusses the broader context of employer rights and practices regarding the monitoring of electronic communications through employer-provided devices, emphasizing the legal and practical considerations that have led to the widespread monitoring of electronic data by employers for security and loss prevention purposes.
Furthermore, the law does not prohibit employers from viewing or using information from employees’ or applicants’ social media accounts that is publicly available or has been voluntarily shared with them. However, it emphasizes the importance of employers updating their employment manuals, policies, and procedures to comply with these new requirements before the law’s effective date.
The passage of S2518A represents a careful balancing act between protecting the privacy rights of employees and job applicants in the digital age and allowing employers to maintain necessary oversight and security measures. As such, this new statute underscores the evolving nature of employment law in response to the pervasive role of social media in both personal and professional spheres.
If you have a New York Law Journal subscription you can read the full article here.