Arkansas Is Latest State to Pass Social Media Privacy Law
Author: Beth Zoller, XpertHR Legal Editor
Arkansas has joined the increasing number of states such as California, Illinois, Maryland, Michigan, Utah and New Mexico that have passed a social media privacy law prohibiting employers from requesting or requiring current or prospective employees to disclose usernames and passwords to their social media accounts or to provide access to such accounts. +2013 Ark. ALS 1480.
The new law defines a social media account as a personal account with an electronic medium or service that allows users to create, share, or view user-generated content such as videos, photographs and messages and specifically references websites like Facebook, Twitter and LinkedIn. The definition excludes accounts that have been:
- Opened at the employer's request;
- Provided to an employee by an employer, such as a company email account or other software owned or operated by the employer;
- Set up by an employee on behalf of an employer; or
- Set up by an employee to impersonate an employer through the use of the employer's name, logos or trademarks.
The new law also prohibits employers from requesting or requiring an employee to add another employee, a supervisor or an administrator to his or her list of social contacts or to change the privacy settings of the account. Employers also may not take an adverse employment action or otherwise retaliate against employees or applicants who refuse to provide such information. The law carves out some protections for an employer and provides that an employer will not be liable if it inadvertently receives an employee's username, password or other login information to an employee's social media account through the use of an electronic device the employer has provided to the employee or in the course of monitoring an employer's network. An employer is also not prohibited from viewing information regarding an employee or applicant that is publicly available on the internet.
Additionally, an employer also may request that an employee disclose his or her username or password so that it may access that individual's social media account if social media account activity is reasonably believes to be relevant to a formal investigation or related proceeding regarding a violation of the law or the employer's written policies. In such cases, the employee's username and password shall only be used for the purposes of the formal investigation or related proceeding.
As a result of this new law, Arkansas employers should revisit and amend their workplace policies and practices regarding social media, hiring, and management practices to ensure compliance with the new law. In addition, employers should notify supervisors and employees with hiring responsibilities about the new requirements.
Additional Resources
Employee Management > Employee Privacy: Arkansas
Recruiting and Hiring > Interviewing and Selecting Job Candidates: Arkansas
Recruiting and Hiring > Employment Offer: Arkansas
Social Media Password Privacy Protection Legislation - Chart