Last week, Arkansas enacted H.B. 1901, joining California, Illinois, Maryland, Michigan, New Mexico, and Utah in restricting employer access to social media or personal accounts. A total of seven states now have such laws. New Jersey’s harsh bill, which we have covered, has cleared the Assembly and is awaiting the Governor’s signature. The Arkansas law provides in pertinent part:
An employer shall not require, request, suggest, or cause a current or prospective employee to:
(A) Disclose his or her username and password to the current or prospective employee’s social media account;
(B) Add an employee, supervisor, or administrator to the list or contacts associated with his or her social media account; or
(C) Change the privacy settings associated with his or her social media account.
Although the Arkansas law closes potential loopholes created by some other similar state laws that did not prohibit employers from requiring employees or job applicants to become a “friend” or “connection” with the employer or its employees, this provision may also raise potential new concerns that could be tested in a future case. For instance:
- Is a supervisor prohibited from sending a friend request to an employee he or she supervises? One could argue that the act of sending a request constitutes a ‘request’ or ‘suggestion’ that is prohibited by the statute. If so, potential First Amendment problems may arise. Is this particular act of the supervisor imputed to the employer if the employer otherwise has no hand in causing the friend request to be sent?
- From whose perspective is it determined whether a connection request is a statutory “request?” Employers and employees or job applicants may have different perspectives on this question.
Even those employers that do not maintain a policy of requiring access to employee social media accounts may wish to keep an eye on the development of these laws, based on possible issues noted above. As more states will likely enact similar laws in the future and tinker with the restrictions on employer conduct, the waters could get murkier still. Proactive employers may wish to begin considering potential revisions to their social media policies.