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Lawmakers in New York have taken a significant step in protecting employees’ privacy rights in the realm of social media. With the implementation of new privacy protections, both employers and employees are navigating a landscape where digital boundaries are more clearly defined.
A new law, scheduled to become effective on March 12, 2024, prohibits employers in New York from taking adverse action against employees based on their lawful off-duty activities conducted on social media platforms. This means that employees cannot be disciplined, terminated, or retaliated against for their lawful social media posts, even if those posts are critical of their employer.
Social media is defined as “an account or profile on an electronic medium where users may create, share, and view user-generated content.” This includes popular social media platforms like TikTok, Facebook, and Instagram. But it also includes “video blogs, podcasts, instant messages, or internet website profiles or locations,” so long as the account or profile “is used by an employee or an applicant exclusively for personal purposes.”
Key Provisions of the New Law
Lawful Off-Duty Activities
The law specifically protects employees engaging in lawful off-duty activities on social media platforms. This includes posts related to political activities, legal recreational activities, and any other lawful activities outside of work.
Non-Disclosure of Login Information
Employers are prohibited from requiring employees or applicants to disclose their social media login credentials or compelling them to access their personal social media accounts in the employer’s presence.
Retaliation Prohibited
Employers cannot retaliate against employees for refusing to provide access to their social media accounts or disclosing their social media login information.
Exceptions to the New Law
Workplace Investigations
The law does provide an exception for employers conducting workplace investigations into allegations of misconduct or violations of applicable laws or regulations. In such cases, employers may request access to an employee’s personal social media accounts, but only if the employer has reasonable grounds to believe that the employee’s social media activity is relevant to the investigation.
Social Media for Business
For employers who publish business-related information through social media accounts managed by employees, the employer can require access to those social media accounts.
Business Technology
For communication devices for which the employer pays, the employer can require access to those devices, as long as the employee was previously notified that the employer had the right to access the device. However, the employer is still prohibited from accessing an employee’s personal social media account through that device.
It should be noted that employers can still access public social media information about an employee – this is available information without needing login access.
Implications for New York Employers
Understanding and complying with these new privacy protections is crucial to avoiding potential legal consequences. Reviewing and updating company policies and practices regarding social media use and employee privacy rights is essential. Employers should also provide training to managers and HR personnel to ensure they are aware of the legal requirements and restrictions.
Implications for New York Employees
Employees should be aware of their rights under the new law and understand that they have legal protections against employer intrusion into their personal social media accounts. However, it’s also important for employees to exercise discretion and professionalism in their social media activity, as certain posts could still have consequences in the workplace, especially if they violate company policies or professional standards.
Conclusion
The enactment of privacy protections for employees’ social media accounts in New York reflects a growing recognition of the need to balance employers’ interests with employees’ rights to privacy and freedom of expression. By establishing clear guidelines and restrictions on employer access to personal social media accounts, the law aims to protect employees from unwarranted intrusion while still allowing employers to conduct legitimate workplace investigations when necessary.
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