This post was written by Gregory J. Sagstetter.
Effective July 1, 2015, Virginia will join the growing list of states (including Arkansas, Colorado, Illinois, Louisiana, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin) that have enacted legislation restricting the circumstances in which an employer can access their employees’ social media accounts.
While employers may still view publicly available information in an employee or prospective employee’s social media account, HB 2081 (Virginia Code § 40.1-28.7:5) prohibits employers from requiring a current or prospective employee to: (1) disclose login information to a social media account; or (2) add an employee, supervisor or administrator to the list of contacts associated with the social media account. It also prohibits employers from using inadvertently obtained login information (through network observation and/or security, for example) to access an employee’s social media account.
Importantly, HB 2081 prohibits employers from failing or refusing to hire a prospective employee for exercising his/her rights under the law, as well as taking action or threatening to discharge, discipline or penalize a current employee for exercising his/her rights under the law.
The lone exception in the statute is for an employer’s formal investigation into allegations that an employee has violated the law or company policy. In that case, the employer may require an employee to provide his or her login information if the employee’s social media account activity “is reasonably believed to be relevant to a formal investigation or related proceeding,” but any information viewed may only be used in connection with that formal investigation.