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Wisconsin Restricts Access to Social Media Accounts

By Michael Klazema on 4/22/2014

Wisconsin has joined many other states to enact a law that limits an employers’ ability to request or require access to personal internet accounts of applicants and employees. The law applies to employers engaging in any activity, enterprise, or business employing at least one individual, as well as state and local governments, the courts, and legislature in Wisconsin. It defines “personal internet account” as an Internet-based account that is created and used by an individual exclusively for purposes of personal communications.

The law prohibits employers from doing the following:

  1. Requesting or requiring an employee or applicant, as a condition of employment, to disclose access information for the personal Internet account of the individual, or to otherwise grant access to or allow observation of the account;
  2. Discharging or otherwise discriminate against an employee for exercising the right to refuse to disclose access information for, grant access to, or allow observation of the employee’s personal Internet account, opposing a practice prohibited by the law, filing a complaint or attempting to enforce any right under the law, or testifying or assisting in any action or proceeding to enforce a right under the law, or
  3. Refusing to hire an applicant for employment because the applicant refuses to disclose access information for, grant access to, or allow observation of the applicant’s personal Internet account.

Employers subject to content, supervision, and retention requirements under the federal securities laws and regulations, or by the rules of a self-regulatory organization, are exempt from these restrictions for those employees who provide financial services.

Despite the restrictions, employers maintain certain rights relating to internet usage. They are permitted to:

  1. Request or require disclosure of access information in order for the employer gain access to or operate an electronic communications device supplied or paid for in whole or in part by the employer or in order for the employer to gain access to 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;
  2. Discharge or discipline an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account without the employer’s authorization;
  3. Conduct an investigation or require an employee to cooperate in an investigation of any alleged authorized transfer of the employer’s proprietary or confidential information or financial data;
  4. Restrict or prohibit an employee’s access to certain Internet sites while using an electronic communications device supplied or paid for in whole or in part by the employer or while using the employer’s network or other resources;
  5. Comply with a duty to screen applicants for employment prior to hiring or a duty to monitor or retain employee communications that is established under state or federal laws, rules, or regulations;
  6. View, access, or use information about an employee or applicant for employment that can be obtained without access information or that is available in the public domain, and
  7. Request or require an employee to disclose the employee’s personal electronic mail address.

The new law also restricts landlords from accessing personal Internet accounts. It specifically prohibits landlords from:

  1. Requesting or requiring a tenet or prospective tenant, as a condition of tenancy, to disclose access information for the personal Internet account of the tenet or prospective tenant, or to otherwise grant access to or allow observation of the account, or
  2. Discriminating against a tenant or prospective tenet for exercising the right to refuse to disclose access information for, grant access to, or allow observation of the personal Internet account of the tenet or prospective tenet for opposing a practice prohibited by the law, filing a complaint or attempting to enforce any right under the law, or testifying or assisting in any action or proceeding to enforce a right under the law.

The law does not prohibit a landlord from viewing, accessing, or using information about a tenant or prospective tenant that could be obtained without access information or that is available in the public domain.

A civil penalty of not more than $1,000 may be accessed against violators of the law. Additionally, a charge of discrimination may be filed with the Department of Workforce Development if adverse action is taken in violation of the law. The Department may award monetary penalties in lieu of reinstatement in an amount not less than 500 times nor more than 1,000 times the hourly wage of the person discriminated against. The Department may also assess back pay liability, if applicable.

Wisconsin is the first state in 2014 to pass a law restricting employer access to social media accounts. Last year we reported on four states that passed restrictions on employers’ access to social media accounts, namely, New Jersey, Oregon, Nevada, and Colorado. Maryland passed a similar law in 2012.

Wisconsin Act 208 is available here for review: https://docs.legis.wisconsin.gov/2013/related/acts/208.


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