By: Daniel Finerty

Wisconsin legislation was recently introduced in the State Senate and Assembly, Senate Bill 223 and Assembly Bill 218 (generally, “legislation”), respectively, limiting employer access to, and observation of, an employee’s social media accounts. Because Wisconsin does not currently have any law expressly regulating employers in this area, the legislation was introduced in a bipartisan effort to do so.

The legislation, both of which are identical bills, prohibits an employer from requesting that an employee or applicant for employment grant access to, allow observation of, or disclose information that allows such access and observation of “personal Internet accounts” of the applicant or employee. Additionally, the legislation prohibits an employer from retaliating against an employee or applicant, including by discharging, suspending, disciplining, or otherwise subjecting to discrimination, for exercising the right to refuse such a request, opposing such a practice, filing a complaint or attempting to enforce that right, or testifying or assisting in a proceeding to enforce that right.

While the legislation primarily offers protection to employees and applicants, it does contain multiple provisions aimed at balancing and safeguarding the interests of employers. The bill explicitly states that the

prohibitions do not apply to the following:

•   Information available from the public domain;
•   Information contained on electronic communication devices paid in whole, or in part by the employer;
•   Accounts or services provided by the employer that the employee obtained by virtue of the employment relationship or that are used for business purposes; or,

 Electronic data that is traveling through or stored on the employer’s network.

Finally, the prohibitions only apply to accounts “created and used exclusively for personal purposes.” Accordingly, an employee that utilizes a personal account for business-related purposes is not necessarily within the protections afforded by the legislation.

Despite the prohibitions contained in the legislation, employers retain the ability to discharge or discipline employees for transferring the employer’s proprietary or confidential information to the employee’s personal account. Furthermore, when conducting an investigation into such

transfer, or any other alleged employment-related misconduct or violation of the law, employers may still require the cooperation of employees if the employer has reasonable cause to believe that such transfer, misconduct or violation has occurred. The legislation, if passed, would apply to employees affected by a collective bargaining agreement that contains provisions inconsistent with the legislation on the day the agreement expires, or is extended, modified or renewed, whichever comes first.

The proposed prohibitions would 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. Unlike some employment laws, the bill applies to all employers, both public and private, and regardless of size. Employers found in violation of the proposed law could face the remedies afforded by the Wisconsin Fair Employment Act, a possible $1,000 fine and any other action authorized by the Wisconsin Fair Employment Act, as may be deemed necessary to remedy the violation.

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.