Delaware Restricts Employer Access to Social Media

Delaware is the newest state to restrict employer’s access to and use of social media accounts of employees and applicants. Delaware House Bill 109 became effective when the Governor approved it on August 7, 2015.

Delaware’s new law applies to all employers in the State, except the United States government. It defines “employer” as any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee or applicant, including the State and any political subdivision or board, department, commission, or school district. The law makes it unlawful for employers, subject to certain exceptions, to require or request an employee or applicant to:

1.    Disclose a username or password for the purpose of enabling the employer to access personal social media;

2.    Access personal social media in the presence of the employer;

3.    Use personal social media as a condition of employment;

4.    Divulge any personal social media;

5.    Add a person, including the employer, to the list of contacts associated with the employee’s or applicant’s personal social media, or invite or accept an invitation from any person, including the employer, to join a group associated with the employee’s or applicant’s personal social media; and

6.    Alter the settings on the employee’s or applicant’s personal social media that affect a third party’s ability to view the content of the personal social media.

Exceptions to Delaware’s restrictions are very similar to what we have seen other states enact. The restrictions do not apply for the purpose of accessing electronic devices or accounts and services provided by the employer for work-related purposes. Employers are also permitted to monitor, review, access, and block electronic data stored on an employer’s network or electronic device that it supplies or pays for in whole or in part. Employers are permitted to conduct investigations into allegations of workplace misconduct or employee violations of applicable laws and regulations.  The law does not impede an employer from complying with a duty to screen employees or applicants before hiring, or to monitor or retain employee communications when required by law or in relation to law enforcement employment. Finally, information that is in the public domain is also exempt from the law.

The law specifies that employers must not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for failing to comply with a request or demand by the employer that violates the law. However, the law does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

You may access Delaware’s House Bill 109 here: http://legis.delaware.gov/LIS/lis148.nsf/vwLegislation/HB+109/$file/legis.html?open

What This Means for You:

• Delaware has made it illegal for employers to require employees and applicants to disclose user name and passwords that would allow the employer to access personal social media accounts. 
• You should determine whether you have employees in the state of Delaware. 
• If you do, review your workplace policies and procedures with your lawyer to ensure compliance with the new law.