By:  Daniel Finerty and Samantha Wood

In our July 9, 2013 E-Alert “Workplace Social Media Legislation Introduced in the Wisconsin Senate and Assembly” [https://lindner-marsack.com/news/workplace-social-media-legislation-introduced-in-the-wisconsin-senate-and-assembly], we wrote about bi-partisan legislation introduced to limit an employer’s ability to request access to, observe, or require disclosure of a personal internet account of an applicant or employee. Senate Bill 223 (“new law”) [https://docs.legis.wisconsin.gov/2013/related/acts/208] was signed by the Governor on April 8, 2014 and takes effect on April 10, 2014. As a result, 2013 Wisconsin Act 208 will make Wisconsin the 13th state to pass such legislation. Specifically, the new law prohibits private and public employers from any of the following:

1. Requesting or requiring an employee or applicant for employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account (“rights”);
2. Discharging or otherwise discriminating against an employee for exercising their rights, for filing a complaint or attempting to enforce their rights, or in retaliation for testifying or assisting in any action or proceeding to enforce these rights; and,
3. Refusing to hire an applicant for employment because the applicant refused to disclose access information for, grant access to, or allow observation of the applicant’s personal Internet account.

While the legislation primarily offers protection to employees and applicants, it does contain multiple provisions aimed at balancing and safeguarding employer interests.

First, the restrictions outlined in the new law protect only “Personal Internet accounts”, which are defined as “an Internet-based account that is created and used by an individual exclusively for purposes of personal communication.” While the definition encompasses the traditional social networking sites such as LinkedIn®, Facebook®, and Twitter®, it also, by definition, applies to internet-based e-mail accounts used by employees.

However, an employee that utilizes a social networking site or e-mail account arguably fails to meet the definition of a “personal Internet account” if it is used for any business-related purposes. While one business-related Tweet® may not undermine the new law’s protections,  regular business-related uses of an otherwise personal Internet account will likely have the opposite effect and undermine any protections afforded by the new law. On this point, the devil will likely be in the details.

Second, the new law specifically defines “access information” as “a user name and password or any other security information that protects access to a personal Internet account.” Any employer requests for such information should be considered in advance to determine if the request is necessary and tailored specifically to fall under one or more of the exceptions outlined in the new law (discussed below).

Finally, the new law expressly provides that employers are not prohibited from engaging in certain, defined business-related activity to monitor the workplace. For example, an employer does not violate the law by doing any of the following:

1. Requesting or requiring an employee to disclose access information to the employer in order for the employer to 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. Discharging or disciplining 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. Conducting an investigation or requiring an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account, if the employer has reasonable cause to believe that such a transfer has occurred, or of any other alleged employment-related misconduct, violation of the law, or violation of the employer’s work rules as specified in an employee handbook, if the employer has reasonable cause to believe that activity on the employee’s personal Internet account relating to that misconduct or violation has occurred. This exception provides that, in conducting an investigation or requiring an employee to cooperate in an investigation, an employer may require an employee to grant access to or allow observation of the employee’s personal Internet account, but may not require the employee to disclose access information for that account.
4. Restricting or prohibiting 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. Complying 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 or rules that applied to “self-regulatory organizations.”       Also, the new law’s prohibitions do not apply to a personal Internet account or an electronic communications device of certain employees that are engaged in providing financial services who uses the account or device to conduct the business of an employer that certain federal securities regulations.
6. Viewing, accessing, or using information about an employee or applicant for employment that can be obtained without access information or that is available in the public domain.
7. Requesting or requiring an employee to disclose the employee’s personal electronic mail address.

Finally, the new law provides a type of “good faith” exception for situations where an employer inadvertently obtains access information for an employee’s personal Internet account through the use of an electronic device or program that monitors the employer’s network or through an electronic communications device supplied or paid for in whole or in part by the employer provided the employer does not use that access information to access the employee’s personal Internet account.

It suffices to say that, when conducting an investigation into employee misconduct or requiring an employee to cooperate in an investigation into work rule violations which involve online or e-mail content, the conduct of any such investigation should be considered on a case-by-case basis and must be measured against the protections afforded by the new law.

Further, prudent employers should always document the basis any conclusion that “reasonable cause” exists to believe that an employee’s account activity may constitutes misconduct, otherwise violate the employer’s work rules or fall under another exception.

Similar to the possible exclusion of evidence obtained through an illegal criminal, if the “reasonable cause” for an employer’s belief is later undermined after the fact, the results of any such investigation may be brought into question. While the new law does not define what will occur if it is determined later that reasonable cause for the investigation did not exist, the novelty of the protections counsel prudence and forethought at each juncture.

Similarly, independent grounds for any employee termination that do not implicate the new law’s protections should be documented as well in order to insulate a termination from a later determination that reasonable cause for an investigation did not exist.

The prohibitions will be enforced by the Wisconsin Department of Workforce Development’s Equal Rights Division, and processed in the same manner as employment discrimination complaints under the Wisconsin Fair Employment Act. Employers found in violation of the proposed law could face a possible $1,000 fine and any other action authorized by the Wisconsin Fair Employment Act, such as back pay and reinstatement.

While the effect upon the Wisconsin workplace remains to be seen, prudent employers should review their current policies and practices to ensure that they do not run afoul of the new law and overly complicate what may otherwise be an uncomplicated termination.

If you have questions about the legislation or social media in the workplace, feel free to call Daniel Finerty at 414-226-4807, or any other Lindner & Marsack attorney at 414-273-3910.

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© Lindner & Marsack, S.C. 2014. All Rights Reserved. The foregoing is a general discussion of a legal issue and is not intended to be, nor should it be construed as, legal advice. Lindner & Marsack, S.C. has represented management exclusively in all facets of labor, employment, and employee benefits law since 1908. Call us at (414) 273-3910, or visit our website, www.lindner-marsack.com, to learn more about our firm and its experienced and innovative attorneys.