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Virginia’s Social Media Law Continues Growing Trend

By Daniel Saperstein & Guy Brenner on March 27, 2015
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Virginia is now the nineteenth state to provide increased social media protections to prospective and current employees, joining Arkansas, California, Colorado, Illinois, Louisiana, Maryland, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin.

Effective July 1, 2015, Virginia’s law will prohibit an employer from requiring a prospective or current employee to:

  • disclose the username and password to his or her personal social media account; or
  • add an employee, supervisor, or administrator to the list of contacts associated with his or her personal social media account.

The law specifically prohibits employers from taking adverse actions against prospective or current employees for exercising their rights under the law.

Despite these protections, Virginia’s law contains important carve outs and clarifications.

  • Employers may request that employees divulge the login information to their personal social media accounts if the employer has a “reasonable belief” that the account activity is “relevant” to the employer’s “formal investigation or related proceeding” regarding the employee’s violation of federal, state, or local laws or regulations or the employer’s written policies.
  • The statute only applies to the personal social media accounts of prospective and current employees – it does not apply to accounts opened at the request of the employer, provided to the employee by the employer, or set up by the employee on behalf of the employer.
  • If an employer “inadvertently” receives login information to an employee’s personal social media account through the use of an employer-provided electronic device or a program that monitors the employer’s network, the employer is not liable for possessing this information (but the employer cannot use the information to access the account).
  • The statute does not prevent an employer from complying with federal, state, or local laws, rules, or regulations (including the rules and regulations of a self-regulatory organization), or from viewing publically available information about a current or prospective employee.

To ensure compliance with the law, Virginia employers should review their hiring, monitoring, and investigatory procedures as they pertain to employees’ and prospective employees’ social media accounts and make any necessary adjustments.

Photo of Daniel Saperstein Daniel Saperstein
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Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member of the Restrictive Covenants, Trade Secrets & Unfair Competition Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Guy is a former clerk to Judge Colleen Kollar-Kotelly of the US District Court of the District of Columbia.

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  • Posted in:
    Employment & Labor
  • Blog:
    Law and the Workplace
  • Organization:
    Proskauer Rose LLP
  • Article: View Original Source

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