Work interests and personal interests often intertwine, particularly when employees use social media to broadcast about work, and sometimes, what happens on an employee's Facebook page directly affects his or her employer's business interests. Now, if that happens in Virginia, and if an affected employer wants to act to protect itself, it will have to remember that the Commonwealth has enacted a statute that protects employees' usernames and passwords from employer disclosure requirements.
A new statute enacted by the Virginia General Assembly and effective July 1, 2015, prohibits employers in Virginia from requiring current or prospective employees from disclosing the usernames and passwords associated with their social media accounts. The new statute also attempts to head off employers from requiring employees and applicants to permit managers and supervisors to "follow" them in their social media travels by prohibiting employers from requiring employees and applicants to add an employee, supervisor, or administrator to lists of contacts associated with social media accounts.
The statute attempts to strike a balance between protection of employees' private social media account information and an employer's inadvertent reception of such information. If an employer inadvertently receives an employee's username and password to, or other login information associated with, the employee's social media account through the use of an electronic device provided to the employee by the employer or a program that monitors an employer's network, the employer will not be liable for having the information. The employer, however, is required to refrain from using the information to gain access to an employee's social media account.
The new law also carves out employer activities associated with compliance with federal, state, or local law and employer investigations of allegations of violations of the law or written employer policies. Employers' existing rights or obligations to request username and password information, which rights and obligations the General Assembly did not specify in the statute, are not affected in cases where such information "is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee's violation of federal, state, or local laws or regulations or of the employer's written policies." If an employer exercises its rights under the investigatory exception, the employer is prohibited from using the employee's username and password for any purpose other than the purpose of the formal investigation or a related proceeding.
Employers are prohibited from taking action against or threatening to discharge, discipline, or otherwise penalize a current employee for exercising his rights under the statute. Employers also may not fail or refuse to hire a prospective employee for exercising his rights under the law.
The intersection of social media activities and labor and employment law has been the subject of increased scrutiny by policymakers on both the state and federal level. The National Labor Relations Board has been particularly active in regulating employers' application of their social media policies and practices in the context of the National Labor Relations Act. See Charity Price, NLRB Settles Claims Based on Employer's Social Media Policy, Labor and Employment Law Cocktail (Feb. 6, 2014).