Montana Limits Access to Social Media Accounts

By Michael Klazema on 4/24/2015

According to House Bill 343, employers and their agents will be prohibited from requiring employees and applicants to:

  1. Disclose a username or password for the purpose of allowing the employer or employer’s agent to access a personal social media account of the employee or applicant;
  2. Access personal social media in the presence of the employer or its agent; or
  3. Divulge any personal social media or information contained on personal social media.

“Personal social media” is defined as a password-protected electronic service or account containing electronic service or account containing electronic content, including but not limited to e-mail, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, internet website profiles or locations, and online services or accounts, including password-protected services or accounts to which an employee may post information, data or pictures. 

The term “personal social media” does not include a social media account that is opened for or provided by an educational institution and intended solely for educational purposes, or opened for or provided by an employer and intended solely for business-related purposes.

Exceptions to these restrictions apply when an investigation is being conducted and the information requested by the employee is necessary to make a factual determination in the investigation, and at least one of the following applies:

  1. The employer has specific information about an activity by the employee indicating work-related employee misconduct or criminal defamation;
  2. The employer has specific information about the unauthorized transfer by the employee of the employer’s proprietary information, confidential information, trade secrets, or financial data to a personal online account or personal online service; or
  3. An employer is required to ensure compliance with applicable federal laws or federal regulatory requirements or with the rules of self-regulatory organizations as defined in section 3(a)(26) of the Securities and Exchange Act.

Employers are not limited or prevented from promulgating and maintaining workplace policies governing the use of its electronic equipment, including a requirement for an employee to disclose to the employer the employee’s username, password, or other information necessary to access employer-issued electronic devices.  This includes cell phones, computers, and tablet computers, or to access employer-provided software or e-mail accounts.

Employers are not permitted to 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.

An employee or applicant may bring an action against an employer for violating the law within one year in small claims court.  Additionally, an employee or applicant may have a cause of action under the state’s privacy in communication law. Damages are limited to $500 or actual damages up to $7,000. The prevailing party in a court action may be awarded legal costs.

Montana House Bill 343 is available here for review:

What This Means To You:

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

Tag Cloud
Recent Posts

Latest News

  • May 18 In search of more personnel and considering normalization, some major employers have elected to drop pre-employment drug screens for marijuana. As the opioid epidemic continues, there is still a role for workplace drug tests.
  • May 15

    A Congressional IT contractor who is facing bank fraud, a class-action lawsuit, and allegations of cyber breach never underwent a background check. Congressional guidelines recommend background screenings but have a loophole that makes it possible to skip them.

  • May 10 Are SSN background checks essential, or even necessary? We look at what Social Security Number data can and cannot do in the background check process.
  • May 10

    In the wake of an attack in which the perpetrator used a rental vehicle to strike pedestrians, and with a growing number of such attacks around the world in recent years, rental companies must consider how to address the issue. Effective security measures have proven difficult to implement.

  • May 08 Some statistics suggest employers aren’t running international background checks. In a job market where foreign candidates are increasingly common, this oversight can be dangerous.
  • May 03

    Despite player numbers in the millions, the primary sanctioning body for youth soccer in the United States established no standard policy requiring background checks. They face legal jeopardy due to the actions of abusive coaches. 

  • May 03 Are you applying for a job with Starbucks? Here’s what to expect from the background check process.
  • May 02 — Further restrictions have been placed on employers that inquire about prior criminal records. Timeframes have been adjusted and asking about expunged records is prohibited. 
  • May 01 Uber is expanding its background check policies. Going forward, the company will incorporate repeat background checks and ongoing criminal monitoring into its driver screening processes.
  • April 28 Airport background checks are governed by the TSA and FAA. They typically include employment history checks, criminal history searches, and a few other elements.