MONEY

Do's and don'ts of Tennessee's new social media law

John Rodgers

If your employees are using company technology to access their personal social media accounts, can you ask them for their usernames and passwords? Not anymore.

The Employee Online Privacy Act of 2014, which went into effect the first of this year, provides clear guidelines to help employers navigate the numerous scenarios involving employees' personal Internet activity.

Don'ts

Tennessee employers and their agents can no longer:

•Request or require an employee or applicant to disclose a password to his or her personal Internet account, such as Facebook, Twitter or a personal e-mail account.

•Compel an employee/applicant to add the employer to the contact list associated with the Internet account. For example, you likely cannot require an employee or applicant to "friend" you on Facebook.

•Force an employee/applicant to access a personal Internet account in the employer's presence. In other words, you cannot require an employee to access his or her personal Internet account while you watch.

If an employer improperly asks an employee to do one of these things and the employee refuses, the employer is prohibited from taking an adverse employment action or otherwise penalizing the employee.

Do's

So what can employers do?

•Request or require employees to provide a username and password to access an electronic communications device supplied by the employer or paid for (wholly or in part) by the employer.

•Request or require employees to provide a username and password to access an account or service the employee obtained because of the employment relationship or that the employee uses for the employer's business purposes. A possible example could be if an employer pays for an Internet database, such a LexisNexis, and requests the employee's username and password for that account.

•Discipline or discharge an employee for transferring the employer's proprietary, confidential or financial information to his or her personal Internet account without the employer's authorization.

•Conduct an investigation or require an employee to cooperate in an investigation when the employer has specific information about an unauthorized transfer of the employer's proprietary or confidential information.

•Restrict or block an employee's access to certain web sites while using an electronic communications device supplied by or paid for by the employer or while using an employer's network or resources.

•Monitor, review, access or block electronic data stored on an employee's communications device supplied by or paid for by the employer.

•View, access or use information about an employee or applicant that is available in the public domain.

Tennessee joins a growing list of states that have enacted similar legislation. The new law does not impose a penalty on employers that violate it, but it does create a standard of conduct regarding what is illegal. Consequently, the law could give rise to a whistleblower claim under the Tennessee Public Protection Act if an employee is terminated for refusing to participate or remain silent about an activity declared illegal under the new law.

John Rodgers is a lawyer in the Nashville office of Bradley Arant Boult Cummings LLP and a member of the firm's Labor & Employment Practice Group. To learn more about BABC, visit www.babc.com.