On September 14, 2023, Governor Kathy Hochul signed Senate Bill 25/18/Assembly Bill 836, which prohibits an employer from requesting or requiring an employee or application for employment disclose personal social media account information.
 

Facts

Assemblymember Jeffrey Dinowitz, the sponsor of the bill, shared his thoughts behind the drafting of A.836. He commented:

The explosion in the use of social media such as Instagram, TikTok, and Threads has made for a greater availability of information than ever before. However, some employers make hiring and disciplinary decisions far beyond information that prospective and current employees share publicly. This includes requesting and demanding the username and password information for social media sites from their prospective and current employees and the login information to email accounts and other extremely personal accounts. Requesting and demanding this information constitutes a serious invasion of privacy on behalf of the employer and may lead to issues of unfair and discriminatory hiring and admissions practices. Employees have the right to make this information either public or private. They should have every right to maintain this privacy when it comes to their workplace or during an interview or admissions process and should not have to submit to this request for fear they will lose their job or not be hired otherwise.[i]

Upon the signing of the bill, New York Labor Law § 201-I was amended to prohibit an employer from requesting, requiring, or coercing any employee or applicant for employment to:

1. disclose any user name and password, password, or other authentication information for accessing a personal account through an electronic communications device;
2. access an employee’s or applicant’s personal account in the presence of an employer; or
3. reproduce in any manner photographs, videos, or other information contained within a personal account obtained by the means prohibited in this paragraph. [ii]

The bill further states employers may not “discharge, discipline, or otherwise penalize an employee” or “[f]ail or refuse to hire” an applicant due to their failure to disclose any prohibited information.[iii]

However, employers “may require an employee to disclose any username, password, or other means used for accessing nonpersonal accounts that provide access to an employer’s internal computer” system.[iv] Likewise, if an account was “provided by…[an]…employer” and “is used for business purposes”, and the employee was notified “of the employer’s right to request”, then a request can be made for the account access information. [v]

While employers may access “electronic communications on a device paid for in whole or in part by an employer where the provision of or payment for such electronic communications device was conditioned on the employer’s right to access…[the]…device and the employee was” notified of and consented to those provisions, employers will still be prohibited from accessing “any personal accounts” on those devices.[vi] Nor are employers prohibited from screening applicants and/or employees, and employers are not prohibited from accessing personal information about applicants or employees which do not require special access. [vii]

The law will take effect on March 12, 2024. Prior to the signing of the bill, employees and applicants were not properly protected. [viii]

Takeaway

In order to prepare for the enactment of the law, employers should update their handbooks and applications to include a section advising employers and applicants of the employer’s rights regarding access to information on company-provided electronic devices. Should employers violate the newly enacted law, they could face retaliation and wrongful termination suits filed through the New York State Department of Labor and in Civil Court.

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Sources

[i] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-strengthen-workers-rights-new-york-state

[ii] https://www.nysenate.gov/legislation/laws/LAB/201-I

[iii] Id.

[iv] Id.

[v] Id.

[vi] Id.

[vii] Id.

[viii] Id.