Effective January 1, 2013, the Internet Privacy Protection Act went into effect.
The law prohibits employers from requiring employees or applicants to
grant access to; to allow observation of; or to disclose information that
allows access to personal internet accounts. The law does not prevent an employer
from "surfing the web" to find out non password protected information
about the employer. An employer may not discipline, terminate,
or otherwise penalize employees and applicants who refuse to provide
A violation of the law is a misdemeanor with a fine of up to $1,000. The
law provides for a private right of action after an individual serves written
demand of the alleged violation with supporting documentation of
the violation. Compliance with state or federal law is an affirmative
defense to a claim.
The law has exceptions when the electronic device is paid for, in whole or
part, by the employer; when the account is obtained by virtue of the employment
relationship or when it is used for the employer's business; and when an employee
employee has transferred proprietary or confidential information or financial
information to a person account without authorization.
There is also an exception where an employer is conducting
an investigation where there
is specific information about activity on a personal
account concerning compliance with applicable law and regulatory requirement,
or about work related misconduct; and about unauthorized transfer of
confidential, proprietary, or financial data; or about access to certain websites
while using the an employer paid for electronic communications device. An
investigation to review, monitor, or access electronic data stored on a device
paid for by the employer or traveling through on the employer's
network in accordance with state or federal law is not a violation.
The law is straight forward--don't ask unless you can establish that one of the
exceptions applies. Employers should recognize that they should
not do indirectly what they cannot do directly--don't ask another
employee to allow access to an account because of that employee's status as a
friend. The law does not directly address this conduct, but it is very
difficult to establish the "voluntary" cooperation of an employee.
One of the exceptions to the law may be impacted by the National Labor
Relations Act and the broad expansion of the NLRB's review of employer policies
and procedures. The law states that an employer does not violate the law
when conducting an investigation into work related employee misconduct. The
NLRB has closely reviewed employer policies regulating conduct that may
be considered as lawful concerted, protected activity under the Act
and dealing with social media. Policies which have been challenged
are those general in nature concerning conduct towards
employees; requiring civility and loyalty; and prohibiting discussion
about wages and fringe benefits. The Acting General Counsel has focused
on employer social media policies.
The Obama Board will likely revisit prior NLRB decisions concerning
employee use of an employer's email and technology. It is anticipated that the
general rule will be to allow access unless an employer can significant
negative impact on its system. The Board will closely review
instances where employers allow access for certain uses, whether through policy
or by employee practice.
So what happens when an employer uses the statute to justify its demand for
access to see if an employee has violated the employer's social media
policy where the employer claims that a potential violation of company
policy has been brought to its attention? The argument will be made that it
falls within the exception to the new law. Expect the NLRB to weigh in on
whether such conduct impacts the employee's exercise of the right to engage in
protected, concerted activity or chills that exercise. An employer who
intends to act based on the assumption that the law provides a defense must
take into account whether its action impacts rights protected under the
For additional Labor and Employment law
insights from John Holmquist, visit the Michigan
Employment Law Connection.
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