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Montana has enacted a law barring employers from delving into employees’ and applicants’ social media accounts, with a few exceptions.
House Bill 343, signed by the governor on April 23, 2015, and effective immediately, prohibits employers from:
*Requiring employees or applicants to disclose information from their social media accounts, or tell the company their user names or passwords so that the company can get into their personal social media accounts.
*Discharging, disciplining, or otherwise retaliating against an employee or job applicant for refusing to comply with a request that would violate those principles.
There are exceptions allowing employers to require employees to disclose this information if the employer has specific information that the employee was involved in misconduct or disclosed the company’s proprietary, financial, or confidential information; or if requiring disclosure would be necessary in order to comply with federal law, and an investigation is under way.
Employers may also, however, continue to promulgate workplace policies for the use of their electronic equipment, such as policies requiring employees to disclose their user names, passwords, or other information for company-provided devices such as cell phones, computers, and tablet computers.
The American Civil Liberties Union calls employer policies requiring employees to divulge this information a grievous invasion of privacy, citing examples of employees or applicants whose employers or prospective employers asked them to provide their Facebook logins or passwords. Employers on the list included the Maryland Division of Corrections, the police department of Norman, Oklahoma, and the city of Bozeman, Montana. (Bozeman changed its policy after a public outcry).
According to the National Conference of State Legislatures, lawmakers nationwide have been hearing reports about employers asking employees to turn over the usernames or passwords for their personal accounts. The employer interest in accessing these personal accounts is prompted by the need to protect proprietary information or trade secrets, to comply with federal financial regulations, or to prevent the employer from being exposed to legal liabilities.
State legislatures have been considering the issue since 2012, and this year, Montana joined Connecticut, Maryland and Virginia in enacting similar legislation. Almost two dozen states have now enacted similar legislation.
Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years.
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