Employee Social Media Protection May Soon Become Federal Law

Last year four states — California,, Illinois, Maryland, and Michigan enacted legislation that prohibits requesting or requiring employees or prospective employees to disclose access information or to otherwise provide access to their personal social media accounts to employers. This year, twenty-six states, including Massachusetts, are considering adopting similar legislation to create a new prohibition against employers or otherwise strengthen existing laws.

Last week, a similar bill was introduced last week in the U.S. Congress; however, it is worth noting that another bill on the same subject failed to get voted on in the last Congress, so it remains to be seen whether this new bill is a reintroduction of the old bill or contains changes that may make it more amenable for representatives and senators.

At the beginning of last year I wrote about an ex-employee being sued by his former employer for control of a Twitter account the company claimed was its property; over the course of last year there were several other similar cases across the country. Attorney Venkat Balasubramani recently brought up the issue of how these new laws may have unintended consequences for these disputes over social media account ownership.

Therefore, I feel it is worth reiterating that if you are going to have your employees make social media postings on behalf of the company, you set up company accounts for them to do so. Or if you prefer to have them post from individual-specific accounts, you set up accounts for them to do so (instead of allowing them to use their personal accounts) and establish a written policy that such company-established accounts are the property of the company. This way, if the federal and many of these state laws pass, you may be able to avoid the confusion and ambiguity Attorney Balasurbamani talked about.