Many people live their lives online open to public consumption. One of the downsides of that is how it could affect their employment. Some individuals have lost job opportunities due to the content of social media posts, even those made many years prior. While it may seem unfair to employees, employers may be concerned about being “guilty by association,” as employees’ accounts may be explicitly or implicitly connected to the employer’s name. However, these fears have led some overzealous employers to demand access to employees’ social media accounts. In response, New York recently enacted a law restricting employers’ rights to employees’ social media.

Effective March 12, 2024, New York Labor Law Section 201-i prohibits employers from requiring job applicants and employees:

• to provide log-in credentials to personal accounts;
• to log into their personal accounts in front of an employer representative; or
• to reproduce or download the contents of their personal accounts.

Further, employers cannot discipline an employee or refuse to hire an applicant for refusing to do any of these things.

Exceptions to the law are made for an employer that is a law enforcement agency, fire department, or department of corrections and community supervision.

Notably, the law does recognize that employers may have legitimate reasons to view an employee’s online accounts in certain instances. Employers are not prevented from:

• Requiring employees to provide credentials to nonpersonal accounts that access the employer’s internal systems
• Requesting credentials to an account provided by the employer for business purposes, where the employee had prior knowledge that the employer could obtain such information
• Accessing a device paid for by the employer, when payment for the device was conditioned on the employer’s right to access information and the employee explicitly consents to this. (Note that the employer still cannot access the employee’s personal accounts on the device.)
• Restricting access to certain websites on the employer’s network or employer-owned devices
• Accessing data available without a log-in, such as public posts or materials obtained from a third party in connection with a workplace misconduct investigation. (For example, a third party gives the employer a copy of an inappropriate message sent by the employee to the third party.)

If you are an employer and request access to employee social media and other electronic accounts, or you are an employee and your employer has access to your accounts, contact us to discuss how the new law may affect you.