An employer restricting the personal lives of employees is a sensitive subject. In most instances, employers avoid putting restrictions on employees when they are off-the-clock because it drives away the best and brightest in their industry.
However, there are some businesses in which employers may want to set parameters for employee behavior outside of the work environment, especially when it comes to the Internet and social media. Many companies have instituted policies that go beyond restricting access to the Internet during work hours and attempts to control what employees can and cannot say when using social media in their personal lives.
Are there policies legal? And if your company does not yet have a policy, how can you create one that stays within the letter of the law?
The law in Colorado on this issue, as in many other states, is rapidly developing.
Colorado has previously instituted laws that generally protect employees against adverse employment actions, including termination, based on their conduct outside of work. In 2013, Colorado enacted a new statute which limits an employer’s ability to access or control employees’ or applicants’ social media accounts. It prohibits employers from requesting employees’ or applicants’ social media user names and/or passwords for accessing their personal accounts. Colorado employers may not force employees or applicants to add anyone to their list of contacts. Likewise, employees or job applicants may not be required to change privacy settings associated with a social networking account. An employer cannot refuse to hire an applicant or terminate a current employee for failing to provide these types of information.
However, this new Colorado law does not strip the employer of all rights regarding an employee’s social media activities. An employer may still require employees to provide passwords or access codes for accounts that access the employer’s computer or information systems. An employer may also conduct an investigation to ensure compliance with securities or financial law or regulatory requirements, if the employer becomes aware that the employee is using a personal website, Internet website, Web-based account, or other account for business purposes. Finally, the employer may investigate an employee’s electronic communications if the employer believes that the employee is downloading confidential information or financial data to a personal website, Internet website, Web-based account, or similar account, without authorization.
The text of the new statute can be found here:
Violations of the new law may lead to a Department of Labor investigation and fines against the employer of up to $5,000 for repeat offenses. To date, there have been no court decisions interpreting the language of this new law.
Similar legislation has been introduced or is pending in at least 26 other states as of 2014.
As a Colorado employer, while you have the right to create a social media and Internet use policy that clarifies your expectations for an employer, it must comply with these recent developments in Colorado law, as well as federal laws which may also prevent an employer from restricting the types of information that can be posted on a personal social media outlet.
Experienced legal help is necessary to ensure maximum compliance with these new and untested laws. If you are responsible for creating your company’s social media policy or you are an employee or job-seeker curious about the legality of a company’s policy, contact the experienced legal team at Miller and Steiert, P.C.
