Thursday, September 4, 2014

That Instant Message Just Cost You Your Job: The Right to Privacy in a Digital Age

It’s Sunday morning, just after 10 a.m., and your boss is scrolling through her Facebook feed. Oh! That’s interesting… Katie wasn’t working all weekend like she implied—she was at the beach! In a bikini! Not at the office! What? She has a tattoo? That’s against work policy. And who is she with?

That’s a tame example. If employers were able to demand account information of employee’s social media outlets, employee privacy rights would be greatly diminished and the implications could be disastrous. As work and private lives continue to merge, where does it end?

A new law in Oklahoma, taking effect November 1, 2014 seeks to clarify the rights of employees to protect private information and the rights of employers to protect confidential information, trade secrets, client files, and the like.

Significantly, Title 40, Section 173.2 of the Oklahoma Statutes prohibits an employer from requiring an employee or prospective employee to disclose his or her username and password (or providing other access) to personal online social media accounts. Not only is the employer prohibited from requiring disclosure of access information, the employer is also prohibited from instructing an employee or prospective employee to log-on to his or her online social media account in the employer’s presence for the purpose of gathering information.

Of course, there are exceptions. An individual’s right to privacy (based in common law and the Constitution) is not absolute. Employers must be allowed to protect trade secrets, proprietary information, and financial data in order to further the interests of both the business and its clients. Oklahoma’s new law allows employers to gain access to personal media accounts in several scenarios. The broadest exception provides that an employer may require an employee to disclose a username or password for accessing private social media accounts on:

“any computer system, information technology network, or electronic communications device provided or subsidized by the employer.”

Laws 2014, HB 2372, c. 315, Section 1, eff. November 1, 2014.

Accordingly, an employer would seemingly be able to gain access to personal social media accounts if used on a company computer, accessed on a company Wi-Fi signal, or accessed on a phone or tablet provided by or subsidized by the employer. Under this law, other exceptions exist to allow the employer to perform investigations to ensure compliance with the requirements of state and federal statutes and other rules and regulations.

What does this mean? Why should we care?

In an age where most employees are expected to be available outside of the typical 9 to 5, technology enables constant contact. Although this ability to exchange information quickly and effectively furthers a career, it simultaneously conflates any notion of separation of private and public life. Of course, while most of us understand that we do not have an expectation of privacy in emails exchanged on a work email account, it might startle some to know that an employer legally has the right to require social media account information in order to protect its interests.

Due to the newness of this legislation, only time will clarify its application in Oklahoma.

See the full text of the new law:

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