Article contributed by Jennifer M. Schmalz, Ellenoff Grossman & Schole LLP
Effective March 12, 2024, it will be unlawful for New York State employers to request, require or coerce any employee or applicant for employment to disclose any username, password, or other means for accessing a personal account through specified electronic communications devices.
All employers will need to ensure that supervisors and managers are made aware of this legal development and that policies are updated to comply with this amendment to the New York labor law.
The amended law will specifically prohibit employers from asking applicants or employees to: 1) disclose any username, password, or other authentication (login) information for accessing a personal account through an electronic communication device; (2) access their personal account in the presence of the employer; or (3) reproduce in any manner photographs, videos, or other information contained within a personal account.
A “Personal Account” means an account or profile on an electronic medium where users may create, share, and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, instant messages, or an internet website profile or location that is used by an employee or an applicant exclusively for personal purposes.
The law does contain certain carveouts. First, it does not apply to “nonpersonal accounts” that provide access to employers’ internal computer or information systems. Second, it permits employers to access employee’s personal accounts under limited circumstances.
Specifically, employers are permitted to request or require an employee do any of the following:
- To disclose access information to an account provided by the employer where such account is used for business purposes and the employee was provided prior notice of the employer’s right to request or require such access information;
- To disclose access information to an account, “known to an employer to be used for business purposes”;
- Provide access to an electronic communications device paid for in whole or in part by the employer where the provision of or payment for such device was conditioned on the employer’s right to access such device and the employee was provided prior notice of and explicitly agreed to such conditions (but this still does not permit access to personal accounts on such device).
A key consideration for these exceptions is providing prior notice to the employee of the employer’s right to request or require access. Best practice is for such notice to be in writing and acknowledged by the employee.
The law provides an exception in the context of investigating or obtaining reports of misconduct where an employee or client voluntarily shares photographs, video, messages, or other information that the employee subject to such report or investigation has voluntarily given access to contained within such employee’s personal account.
As would be expected, the law does permit employers to access a personal account if such access is required to comply with a court order.
Finally, it is an affirmative defense to any action under this law that an employer acted to comply with requirements of a federal, state or local law.
Additionally, employers may still restrict employees from accessing certain websites while using an employer’s network or while using a device paid for by the employer.
Employers may not discharge, discipline, or otherwise penalize an employee or applicant because of their refusal to disclose or provide access to personal account information.
New York employers should consult with their labor and employment counsel to update policies and notices to employees related to monitoring of electronic communication systems, accounts and devices in the workplace, to ensure their practices are in compliance on or before the effective date.
Jennifer M. Schmalz is a Partner at Ellenoff Grossman & Schole LLP in New York City in the in the Labor & Employment practice group.
She counsels employers in all facets of labor, employment and employee benefits law, with broad experience in preventing and resolving workplace disputes, compliance with the variety of laws governing the workplace, and the labor and employment aspects of mergers and acquisitions and other corporate transactions.
Ms. Schmalz has successfully litigated matters involving employment discrimination, Title III of the ADA, wrongful termination, violations of restrictive covenants, breach of contract and wage and hour violations.
She works with clients in a wide variety of industries including hospitality, real estate, transportation, retail, financial services, health care, manufacturing, technology and not-for-profit corporations.
Jennifer M. Schmalz can be reached at jschmalz@egsllp.com or via phone at 212-370-1300.
