Wisconsin Social Media Law Restricts Employer Access to Personal Internet Accounts | Practical Law

Wisconsin Social Media Law Restricts Employer Access to Personal Internet Accounts | Practical Law

Wisconsin recently enacted the Wisconsin Social Media Protection Act, which prohibits employers from seeking access to employees' or applicants' personal internet accounts, with some exceptions.  

Wisconsin Social Media Law Restricts Employer Access to Personal Internet Accounts

Practical Law Legal Update 8-564-8085 (Approx. 6 pages)

Wisconsin Social Media Law Restricts Employer Access to Personal Internet Accounts

by Practical Law Labor & Employment
Published on 14 Apr 2014 • Wisconsin
Wisconsin recently enacted the Wisconsin Social Media Protection Act, which prohibits employers from seeking access to employees' or applicants' personal internet accounts, with some exceptions.
On April 8, 2014, Wisconsin Governor Scott Walker signed into law the Wisconsin Social Media Protection Act, which went into effect on April 10, 2014 (2013 Wisconsin Act 208). The new law prohibits employers with at least one employee from seeking certain information about employees' and applicants' "Personal Internet accounts," defined as an Internet-based account created and used by an individual exclusively for personal communication.
Specifically, employers may not:
  • Request or require an employee or applicant to disclose access information, grant access or allow observation of a personal Internet account as a condition of employment.
  • Discharge or otherwise discriminate against an employee for:
    • exercising his right to refuse to disclose access information, show or grant access to a personal Internet account;
    • opposing a practice prohibited under the law;
    • filing a complaint or attempting to enforce a right under the law; or
    • testifying or assisting in any action or proceeding to enforce a right under the law.
  • Refuse to hire an applicant for employment because the applicant refused to disclose, show or grant access to a personal Internet account.
However, the law does not prohibit an employer from:
  • Requesting or requiring an employee to disclose or provide access to an account, service or electronic communications device that the employer supplied or fully or partially paid for in connection with the employee's employment or that is used for the employer's business.
  • Discharging or disciplining an employee for transferring the employer's proprietary or confidential information or financial data to the employee's personal Internet account without the employer's authorization.
  • Conducting an investigation or requiring an employee to cooperate in an investigation if an employer has reasonable cause to believe that there has been:
    • any alleged unauthorized transfer of confidential, proprietary or financial information to the employee's personal Internet account; or
    • any other alleged employment-related misconduct, violation of the law or violation of the employer's work rules, as specified in an employee handbook, which is related to activity on the employee's personal Internet account.
    Although an employer can require an employee to show or grant access to the Internet account in these situations, the employer still cannot require the employee to disclose a user name, password or security information for the employee's personal Internet account.
  • Restricting or prohibiting an employee's access to certain Internet sites while using an electronic communications device the employer supplied or fully or partially paid for, or using the employer's network or other resources.
  • Complying with a duty to:
    • screen applicants for employment prior to hiring; or
    • monitor or retain employee communications that is established under state or federal laws, rules and regulations or the rules of a self-regulatory organization.
  • Viewing, accessing or using information about an employee or applicant for employment that can be obtained without access information or that is available in the public domain.
  • Requesting or requiring an employee to disclose his personal e-mail address.
The law does not apply to:
  • A personal Internet account or an electronic communications device of an employee engaged in providing financial services who uses the account or device to conduct the business of an employer that is subject to the content, supervision and retention requirements imposed by federal securities laws and regulations.
  • Situations where the employer inadvertently accesses an employee's personal account through a system the employer pays for to monitor its network, provided the employer does not later use that information to access the employee's personal Internet account.
  • Employees subject to a collective bargaining agreement (CBA) that contains provisions conflicting with the new law, until the CBA expires or is extended, modified or renewed, whichever occurs first.
An employee or applicant that is discharged, not hired or otherwise discriminated against in violation of this law has a private right of action and may file a complaint with the Equal Rights Division, Wisconsin's administrative agency that enforces the Wisconsin Fair Employment Act. Actions under this law will be handled like discrimination complaints, and employers that violate the statute will be required to make the employee or applicant whole and may be required to pay a penalty up to $1,000.