Washington is now the ninth state to prohibit employers from accessing the social media accounts of current and prospective employees. Additional states include Arkansas, California, Colorado, Illinois, Maryland, Michigan, New Mexico, and Utah (Oregan is also awaiting its governor’s signature on similar proposed legislation).
In light of this and other legal developments affecting tech-heavy industries — especially employers in digital media — below is a list of issues that our clients and other tech-based businesses should consider in setting their employment policies:
- As noted above, more and more states are taking a serious stance on shoulder surfing when it comes to the employer/employee relationship. Not only should employers be aware of their state’s laws on shoulder surfing, they should also be aware of the laws in whatever states they have remote employees (digital businesses seldom limit their operations to a single state). Ultimately, I would advise against any sort of shoulder surfing, even if allowed under state law, simply because of the additional legal exposure that faces an employer who gains access to an employee’s intimate, and often constitutionally-protected, personal details.
- Worker’s compensation is becoming a major issue for cash-strapped states that could stand on making an extra buck by enforcing penalties against employers who are not hip to the ramifications of failing to apply for worker’s comp insurance on behalf of remote employees (e.g., New York charges a $2,000 per 10 day penalty on uninsured employees). Employers who utilize technology to promote efficient interstate remote office work should be aware of each state’s requirements on worker’s compensation insurance.
- Employers need to set a strict policy on internet communications made by employees during the course of the work day. More and more I see companies facing legal threats arising out of defamatory communications made by employees who made such communications, via blog or company review websites such as CitySearch.com, during the workday from the office PC.
As technology evolves, so too will the myriad of ways that the employer/employee relationship will find itself in novel situations that are either not covered or unintuitively covered by existing legislation. It is in tech companies’ best interests to stay up to speed on state and federal level developments affecting the employment relationship.
LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.