Social Media Password Privacy in Michigan

Social Media Password Privacy in Michigan

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 access/passwords.

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 NLRA.

For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.

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