"New Law Provides Guidelines Related to Employees' Social Media Accounts"

By: Jennifer Hagedorn
April 6, 2016

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.

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.