Employers Take Note: New Michigan Law Bans Employers from Accessing Employee Social Media Sites

For most employers, this new legislation will not result in any significant changes in the hiring and employment decision process. “In general, we are finding that employers are not requesting social media log-in and passwords from prospective employees or current employees,” says Patricia Nemeth of Nemeth Burwell, P.C. “Nonetheless, this is another law on the books that employers need to be aware of and comply with when making employment decisions.”

Pursuant to the Act, employers are prohibited from 1) requesting that an employee or an applicant “grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s or applicant’s personal Internet account” and 2) from discharging, disciplining, failing to hire, or otherwise penalizing an employee or applicant for failing to disclose or provide access to a personal Internet account.

Employers who violate the Act are guilty of a misdemeanor punishable by a fine of not more than $1,000.00. Individuals can also bring a civil action in district court and may recover up to $1,000.00 in damages, plus reasonable attorney fees and costs. The Act includes some exceptions where an employer is permitted to ask for an employee or job applicant’s social media account information. Under the Act, an employer will continue to be able to:

• Request or require an employee to disclose log-in information for an electronic communication device paid for in whole or in part by the employer;
• Request or require an employee to disclose log-in information for “an account or service provided by the employer, obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes”;
• Discipline or discharge an employee for transferring proprietary or confidential employer information to an employee’s personal internet account without authorization;
• Conduct an investigation or require an employee to cooperate in an investigation under certain limited circumstances; and
• Implement or enforce a workplace Internet usage and/or monitoring policy

Employers may at times, be in a position where compliance with another federal or state law requires violating the Internet Privacy Protection Act. In recognition of this possibility, the Act states that employers can use their compliance with the state or federal law as an affirmative defense to claims alleged.

Several states, including California, Maryland, Delaware, Illinois, and New Jersey have enacted similar laws. Many other states have social media protection bills pending.

Employers who use social media when researching applicants or when deciding to implement employment decisions need to consider not only the new Internet Privacy Protection Act, but also employment discrimination and privacy laws that may apply.

“The issue of privacy and the Internet continues to develop with not only Michigan addressing this evolving issue, but also the National Labor Relations Board, the U.S. legislature and the courts,” said Nemeth. “Employers should continue to monitor the evolving electronic privacy issues and review and implement practices and policies accordingly.”

About Nemeth Burwell, P.C.: Nemeth Burwell (www.nemethburwell.com) specializes in employment litigation, traditional labor law and management consultation for private and public sector employers. It is the largest women-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.
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