Can Employers Legally Require Access to Employees’ Social Media Accounts?

Julia Potter | 04.15.16

A recent report from the Pew Research Center reveals that nearly two thirds of American adults use social networking sites. As tempting as it may be to ​“check up” on employees or potential hires by requiring access to their social media accounts, employers in Wisconsin should think twice. Wisconsin’s Social Media Protection Act, which went into effect in 2014, restricts an employer’s ability to access and monitor private employee social media accounts. 

The law applies to an employee’s ​“personal Internet account,” which is defined as ​“an Internet-based account that is created and used by an individual exclusively for purpose of personal communications.” This definition includes personal social media accounts such as Facebook, Twitter, Snapchat, and Instagram, as well as personal e‑mail accounts.

The law prohibits employers from:

• Requesting or requiring an employee or applicant, as a condition of employment, to disclose access information (e.g., username, password, answers to challenge questions) for a personal Internet account or otherwise grant access to or allow observation of that account;
• Discharging or otherwise discriminating against an employee who refuses to disclose access information for, grant access to, or allow observation of a personal Internet account; who opposes an employer’s violation of the law; or who files a complaint, testifies, or assists in an action against the employer for such a violation; and
• Refusing to hire an applicant because the applicant refused to disclose access information to or otherwise grant access or allow observation of a personal Internet account.

The law does contain a number of exceptions that allow an employer to require the grant of access to an applicant’s or employee’s personal Internet account under certain limited circumstances. For example, an employer may require an employee to disclose access information for a device, account, or service provided by the employer or used for the employer’s business purposes. An employer may also require the grant of access to an employee’s personal Internet account to conduct an investigation of employment-related misconduct if there is reasonable cause to believe that activity on that account relates to the misconduct.

In addition, the Social Media Protection Act does not prohibit an employer from viewing online information about an employee or applicant if that information can be obtained without access information or is available in the public domain (although this practice may be unwise for other reasons), nor does it prohibit an employer from requiring an employee to disclose his or her personal e‑mail address. 

Employers who violate the law are subject to a $1,000 forfeiture and an employee or applicant who was discharged or discriminated against in violation of the law may file a complaint against the employer under the Wisconsin Fair Employment Act.

• Employment