Labor and Employment Alert
New Law Provides Guidelines Related to Employees' Social Media Accounts

Last month, the Bowles Rice Labor and Employment Group issued a Legislative Summary, highlighting legislation enacted during the 2016 regular session of the West Virginia Legislature that affects West Virginia employers.

On April 1, Governor Earl Ray Tomblin signed the final version of House Bill 4364, known as the Internet Privacy Protection Act. This legislation, which becomes effective on June 10, 2016, also will affect West Virginia employers and is summarized below.

The Internet Privacy Protection Act amends Chapter 21 of the West Virginia Code by adding a new Article 5G titled "Employee Personal Social Media." The Internet Privacy Protection Act provides employers with guidelines related to an employee's use of social media.

Specifically, §21-5G-1(a) provides that an employer shall not:

  • Request, require or coerce an employee or a potential employee to disclose a username, password or any other authentication information that allows access to the employee or potential employee's personal account;

  • Request, require or coerce an employee or a potential employee to access the personal account of an employee or the personal account of a potential employee in the presence of the employer; or

  • Compel an employee or potential employee to add the employer or an employment agency to their list of contacts that enable the contacts to access a personal account.

West Virginia Code §21-5G-1(b) states that employers are permitted to do the following as it relates to an employee's social media use:

  • Access information about an employee or potential employee that is publicly available;

  • Comply with applicable laws, rules or regulations;

  • Require an employee to disclose a username or password or similar authentication information for the purpose of accessing an employer-issued electronic device or 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;

  • Conduct an investigation or require an employee to cooperate in an investigation.

  • Prohibit an employee or potential employee from using a personal account during employment hours, while on employer time or for business purposes; or

  • Request an employee to share specific content regarding a personal account for the purposes of ensuring compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct.

Pursuant to West Virginia Code §21-5G-1(c), an employer is not liable for having the username or password of an employee's personal social media account when obtained from monitoring the employer's network or employer-provided electronic devises unless:

  • the employer uses the information to access the personal account; or

  • the employer does not delete the information as soon as practicable.

If there is an active investigation of a breach of data security, then the employer is not required to delete the data immediately.

The statute does not provide any specific remedies available to employees and/or penalties against employers for violating its provisions. However, employers should note that any actions taken that violate the Internet Privacy Protection Act could subject them to various types of claims by employees for damages related to invasion of privacy.

About the Author:

Attorney Jennifer B. Hagedorn Jennifer Hagedorn is an attorney in the Bowles Rice Labor and Employment Law Group. Jennifer is a 2001 graduate of the West Virginia University College of Law and is admitted to
practice in both West Virginia and Pennsylvania.

For more Information:
If you have questions or would like to discuss the impact of the Act on your business, please contact Jennifer Hagedorn or Mark Dellinger, the leader of the Bowles Rice Labor and Employment Law Group.

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