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In 2012, state legislatures started introducing laws to restrict employers from obtaining user names and passwords to employees' personal and private social media accounts. As 2013 rolls forward, the trend is continuing with proposed legislation 26 states . Twelve states already have such laws in place enacted since the beginning of 2012.
Champions of keeping employers out of employee’s personal social media accounts site privacy as the issue and claim that employer’s concerns about protecting proprietary company information is already covered by other laws. Further they claim that employers screening social media accounts of job applicants are dancing dangerously close to discrimination issues, which is expressly illegal.
Businesses are fighting back and state that the new laws keeping them out of employee’s social media accounts provide a venue for employees to divulge proprietary information and inhibit their ability to investigate such matters. Some states, are trying to add amendments to allow companies to require access to personal digital accounts when investigating allegations that the employee has given away proprietary company information or has engaged in other forms of workplace misconduct In Colorado, employers can request access to their employees' personal accounts when investigating reported breaches of compliance, regulatory and securities laws; and company proprietary information or financial data
However, it is clear in the Colorado law that fishing expeditions are forbidden and the employer must have supporting information to pursue this avenue of investigation—and fines can be assessed against employers for violations.
The states and legal guidance
States with such laws already on the books include:
• New Mexico
States with pending legislation include:
• New Hampshire
• New Jersey
• New York
• North Carolina
• North Dakota
• Rhode Island
• West Virginia