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Given the rapid evolution of social media, navigating through social media-related employment issues is oftentimes unchartered territory for employers. In 2013, Governor Beebe signed into law Act 1480, which offers guidance as to what an employer can and cannot do with respect to an employee’s personal social media account.
Act 1480 is enforced by the Arkansas Department of Labor and applies to all employers. Act 1480 prohibits an employer from requiring, requesting, suggesting, or causing a current or prospective employee to (1) disclose the username and password for his/her social media account; (2) add an employee, supervisor, or administrator to a list or contacts associated with his/her social media account; or (3) change the privacy settings associated with his/her social media account. It is also unlawful for an employer to retaliate against an applicant or employee for refusing to comply with any of these prohibited acts.
There are certain exceptions to Act 1480. For instance, the law applies only to an employee’s personal social media account (e.g., Facebook, Twitter, LinkedIn, Instagram, blog or podcast), so any social media account opened at the request of an employer, provided by an employer, or created on behalf of or for the benefit of an employer is not covered by Act 1480. Additionally, if a personal social media account is relevant to the investigation of an employee’s alleged violation of law or written employment policy, an employer may obtain and use the employee’s login information for the limited purpose of investigating those allegations.
It is also worth noting that, if an employer inadvertently receives an employee’s account username, password, or other login information through an employer-provided electronic device or a network monitoring system, the employer will not be liable under Act 1480 as long as the employer does not use the information to gain access to the employee’s social media account.
Finally, Act 1480 does not prohibit employers from viewing information about a current or prospective employee that is publicly available on the Internet, but managers should generally avoid doing so for the same reason why managers should not be “friends” with employees on Facebook or other social media sites—i.e., the potential exposure to information that managers do not need to know about their employees. In fact, given the enactment of Act 1480, managers who are currently “friends” or otherwise connected with their employees on social media may want to reconsider those connections. At a minimum, though, employers should take a close look at their social media policies to ensure they comply with Act 1480.