New York: Employees Entitled to Privacy in Personal Online Accounts
Effective March 12, 2024, employers may not request, require, or coerce any applicant or employee to:
- Disclose their LinkedIn, TikTok, Instagram, Facebook, Twitter, Snapchat, Reddit, etc. (personal online account) username and/or password.
- Open their personal online account in the employer’s presence.
- Reproduce, in any way, pictures or videos from their personal online account.
Employers can’t penalize or retaliate against an employee who doesn’t provide access to their personal online account.
Employers can require that employees disclose their username and/or password to access their nonpersonal, employer-provided online account; disclosure protections don’t apply to accounts used by an employee for business purposes. Employers may access login information for work phones they pay for if they give advance notice about the access and the employee agrees to it. Employers can’t access an employee’s personal online account even if it’s on an employer-provided work phone. However, employers can:
- Restrict or prohibit employee access to certain websites when they’re using the employer’s network or on an employer-provided device, with the advance notice discussed above.
- Comply with a duty to screen employees or applicants before hiring them, or monitor or retain employee communications when required by law.
Employers can also view, access, and use:
- Information about an employee or applicant that can be obtained without any access information or is publicly available; and
- Photos, videos, and messages voluntarily shared by a third party (even if it’s on an employee’s personal online account) when they were voluntarily given access to it by an employee subject to a misconduct report or investigation.
For instance, Diego and Frida chat on Snapchat through their personal online accounts. Diego sends Frida a Snap (a picture) showing him stealing company property. Frida can voluntarily share the Snap with Diego’s employer and the employer is able to use it in a misconduct investigation against Diego.
NY AB 836 was signed by the governor on September 14, 2023.