Effective April 9, 2014, Act 208 prohibits employers, regardless of size, and including the State of Wisconsin, from requiring employees or applicants to provide passwords or other “access information” to social media sites, or other personal Internet-based accounts. “Access information” is defined as a user name and password or any other security information that protects access to a personal Internet account. Wis. Stats. Section 995.55(1)(a). Act 208 imposes similar restrictions on educational institutions concerning existing and prospective students, and on landlords, concerning their tenants and prospective tenants.

Employers may not ask existing employees or applicants to reveal the account information for access to their personal social media accounts. Wis. Stats. Section 995.55(2). An employer may also not discharge or otherwise discriminate against an employee who opposes a practice prohibited by Act 208, or refuse to hire an applicant who refuses to grant access to or allow observation of the applicant’s personal Internet account. Id. An employer may conduct research online about their applicants or employees so long as the information is available without access information, and is in the public domain. Wis. Stats. Section 995.55(2)(b). (See Attorney Sumara’s post about firing employees for social media posts.) If an employer inadvertently obtains the access information, so long as they do not use the information, they will not violate the new statute.

Employers who provide electronic devices to employees may still require the employee to give them access to information to access the devices. Wis. Stats. Section 995.55(2)(b)1. An employer may discipline or terminate an employee who transfers proprietary or confidential business information from their device to their personal Internet account. Id.

Violations of the Act may result in fines up to $1,000. Wis. Stats. Section 995.55(2)(b)2. If an employer has reasonable cause to believe an employee conducted a transfer, the employer may require the employee to give the employer access to or allow observation of the employee’s personal Internet account, but not require disclosure of access information for the account. Wis. Stats. Section 995.55(2)(b)3. Complaints must be filed with the State of Wisconsin, Department of Workforce Development, in the same manner as employment discrimination complaints under Wis. Stats. Section 111.39. Id.

The Act does not create a duty for an employer to search or monitor the activity of any personal Internet account. Wis. Stats. Section 995.55(5)(a). An employer is not liable for their failure to request or require that an employee or applicant for employment, grant access to, or disclose their personal Internet account information. Id.

The Act is silent as to a separate statute of limitations period, or whether or not attorney’s fees may be awarded. Because the Act specifically says enforcement for employment-related claims will be in the same manner as for employment discrimination complaints processed under Section 111.39, it is reasonable to assume attorney’s fees will be available to a prevailing plaintiff, and the statute of limitations associated with Chapter 111 will apply. Wis. Stats. Section 995.55(6)(b).

If you have questions about what your employer or a prospective employer is requiring of you concerning your personal Internet accounts, please contact an employment lawyer at Hawks Quindel.

Katherine Charlton

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