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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: http://leg.mt.gov/bills/2015/billpdf/HB0343.pdf

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.

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