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Starting on March 12, 2024, a brand new social media privateness legislation for workers and job candidates goes into impact in New York. The brand new legislation will amend the New York Labor Regulation (the “NYLL”) to limit most employers from accessing the non-public social media accounts of workers and job candidates. The brand new restrictions had been authorized when Governor Kathy Hochul signed into legislation two payments, Meeting Invoice 836 (A836) and Senate Invoice 2518A (S2518A), on September 14, 2023.

The New Guidelines for Employers

A836/S2518A amends the NYLL in a number of methods. First, the brand new legislation prohibits employers from requesting or requiring that workers or job candidates disclose their person title, password, or different entry info for his or her private social media account. Second, workers and candidates can’t be requested or required to entry their private social media account within the presence of the employer. Third, the legislation prohibits employers from requiring or requesting workers or candidates to breed images, video, or different info from a private social media account. As written, A836/S2518A applies to all employers lined by the NYLL, excluding legislation enforcement businesses, fireplace departments, and departments of corrections and group supervision.

A836/S2518A additionally prohibits employers from retaliating towards workers who train their rights underneath the brand new legislation. Underneath A836/S2518A, employers could not penalize or threaten to penalize an worker for his or her refusal to reveal any of the knowledge specified above. And employers can not fail or refuse to rent any job applicant because of the applicant’s refusal to reveal such info.

Whereas workers and candidates seem to have a non-public proper of motion underneath A836/S2518A, you will need to observe that an employer’s efforts to adjust to relevant legislation or the necessities of a self-regulatory group (such because the Monetary Trade Regulatory Authority) will present an affirmative protection to any declare. As an example, A836/S2518A doesn’t prohibit employers from complying with a legally-mandated responsibility to display screen workers or candidates. Likewise, A836/S2518A doesn’t limit employers from monitoring or retaining worker communications the place they’ve a authorized obligation to take action.

Exceptions and Exclusions

A836/S2518A contains a number of exceptions and exclusions that employers ought to pay attention to. Importantly, the brand new legislation doesn’t limit employer entry to nonpersonal accounts that present entry to the employer’s inner pc or info methods. Nor does it forestall workers from voluntarily including an employer or an agent of the employer as a social media connection.

The brand new legislation additionally doesn’t prohibit employers from requesting or requiring an worker to reveal entry info to a enterprise account supplied by the employer when the worker had prior discover of the employer’s proper to request or require this info. Employers are additionally not prohibited from accessing an account to adjust to a court docket order.

A836/S2518A additionally doesn’t forestall employers from viewing, accessing, and utilizing details about an worker or applicant that’s out there within the public area or that may be accessed with none required entry info. And the legislation comprises an exception that permits employers to view images, movies, messages, and different info for the needs of investigating misconduct if the worker in query voluntarily provides the employer entry to such info.

Lastly, A836/S2518A ensures that employers could proceed to train broad entry rights over their tools and networks. As an example, A836/S2518A explicitly permits employers to entry digital communication gadgets paid for in entire or partially by the employer, supplied that cost for the gadget was conditioned on the employer’s entry rights and the employer doesn’t entry private accounts on the gadget. Likewise, employers could proceed to limit worker entry to sure web sites (equivalent to social media web sites) whereas utilizing the employer’s community or an digital communication gadget supplied by the employer.

As A836/S2518A comes into impact, employers ought to be certain that their hiring and personnel practices adjust to the brand new restrictions imposed by the legislation. Employers are additionally suggested to assessment their written insurance policies and handbooks to find out if any modifications are wanted to make sure compliance with the brand new legislation. Employers ought to seek the advice of with their authorized counsel to make sure that their insurance policies and practices fulfill the necessities of A836/S2518A.

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