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Tennessee Restricts Employer Access to Social Media Accounts

By Michael Klazema on 5/20/2014

The Employee Online Privacy Act applies to anyone that employs one or more employees and includes the state and its political subdivisions and an agent, representative, or designee of the employees.

The Act defines “personal Internet account” as:

An account that is used by an employee or applicant exclusively for personal communications unrelated to any business purpose of the employer, and includes any electronic medium or service where users may create, share or view content, including emails, messages, instant messages, text messages, blogs podcasts, photographs, videos, or user-created profiles.

The term does not include an account created, maintained, used, or accessed by an employee or applicant for business-related communications or for a business purpose of the employer.

Effective January 1, 2015, employers shall not:

  1. Request or require an employee or an applicant to disclose a password that allows access to the employee’s or applicant’s personal Internet account.
  2. Compel an employee or an applicant to add the employer or an employment agency to the employee’s or applicant’s list of contacts associated with a personal Internet account;
  3. Compel an employee or an applicant to access a personal Internet account in the presence of the employer in a manner that enables the employer to observe the contents of the employee’s or applicant’s personal Internet account; or
  4. Take adverse action, fail to hire, or otherwise penalize an employee or applicant because of a failure to disclose information or take an action based on the restrictions under the law.

The law specifies that employers are not prohibited from:

  1. Requesting or requiring an employee to disclose a username or password required only to gain access to (a) an electronic communications device supplied by or paid for wholly or in part by the employer, or (b) an account or service provided by the employer that is obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes;
  2. Disciplining or discharging an employee for transferring the employer’s proprietary or confidential information or financial data to an employee’s personal Internet account without the employer’s authorization;
  3. Conducting an investigation or requiring an employee to cooperate in an investigation if (a) there is specific information on the employee’s personal Internet account regarding compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct; or (b) the employer has specific information about an unauthorized transfer of the employer’s proprietary information, confidential information, or financial data to an employee’s personal Internet account;
  4. Restricting or prohibiting an employee’s access to certain websites while using an electronic communications device supplied by or paid for wholly or in part by the employer or while using an employer’s network or resources, in accordance with state and federal law;
  5. Monitoring, reviewing, accessing, or blocking electronic data stored on an electronic communications device supplied by or paid for wholly or in part by the employer, or stored on an employer’s network, in accordance with state and federal law;
  6. Complying with a duty to screen employees or applicants before hiring or to monitor or retain employee communications (a) that is established under federal law or by a “self-regulatory organization”, as defined in the Securities and Exchange Act of 1934, 15 U.S.C. § 78C(a), (b) for purposes of law enforcement employment, or (c) for purposes of an investigation into law enforcement officer conduct performed by a law enforcement agency; or
  7. Viewing, accessing, or using information about an employee or applicant that can be obtained without violating the law or information that is available in the public domain.

Remedies under the law include possible criminal sanctions of not more than $1,000 for each violation, and possible civil action with damages of no more $1,000 for each violation, plus reasonable attorney fees and court costs.

Tennessee’s Senate Bill 1808: http://www.capitol.tn.gov/Bills/108/Bill/SB1808.pdf

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