by Cindy Kolb
On April 22, Governor Beebe signed into law an Act that could affect employers’ social media policies across the state. Act 1480 prohibits an employer from requiring or requesting current or prospective employees to disclose their social media account usernames or passwords. This law mirrors others being passed this year in state legislatures across the country.
The coverage of the new Arkansas law is expansive. An “employer” is any person or entity engaged in a business, industry, profession, trade or other enterprise in the state (or a unit of state or local government) including, without limitation, an agent, representative or designee of the employer. An “employee” is an individual who provides services or labor for wages or other remuneration for an employer. Act 1480 defines personal social media accounts as any electronic medium “where users may create, share, or view user-generated content.” This includes common social networking sites like Facebook, Twitter and LinkedIn, but also includes personal blogs or websites.
Act 1480 prohibits an employer from requiring, requesting or suggesting that an employee or prospective employee “friend” (connect with) a supervisor, or even another employee. In other words, an employer cannot suggest that any employees add a supervisor or co-worker to their list of associated social network contacts.
There are some key exceptions to the general prohibitions. The prohibition does not apply to company email accounts or to social media accounts an employer creates for business use. It also allows for employers to request an employee’s username and password when it is “reasonably believed to be relevant to a formal investigation or related proceeding” of possible violations of federal and state laws, or of the employer’s written policies.
Moreover, the employer is not liable for having an employee’s username, password or other login information to his or her social media account if obtained inadvertently through the use of an employer-provided electronic device or a program monitoring an employer’s network. The employer, however, still may not use that information to gain access to the employee’s social media account.
In addition, the new Arkansas law does not prohibit an employer from viewing information about a current or prospective employee publicly available on the Internet, nor does it prevent an employer from complying with the requirements of federal, state or local laws, rules, or regulations (or the rules or regulations of self-regulatory organizations).
A very similar Act, Act 998, has also been signed into law which places almost identical restrictions on institutions of higher education from requesting access to the social media accounts of current and prospective students or employees.
Act 998, the law specific to institutions of higher education, does not provide for any penalties. However, by amending Title 11 of the Arkansas Code, Act 1480 (the law specific to employers) provides for certain penalties to be enforced by the Director of the Arkansas Department of Labor (Director). With respect to penalties, employers should note that not only does the new Arkansas law provide for modest fines common to other laws and proposals, but it also allows for possible imprisonment. An employer is guilty of a misdemeanor for violating, or failing or refusing to comply with, the new Arkansas law, a lawful order of the Director, or a court judgment or decree made in connection with the new Arkansas law for which no penalty has been otherwise provided. Upon conviction, the employer is to be fined for each offense no less than ten dollars ($10.00) but no more than one hundred dollars ($100.00), and/or imprisoned for a period not exceeding six (6) months. Pursuant to the new law, each day the violation, omission, failure or refusal continues is a separate offense. In lieu of these penalties, any penalty except imprisonment may be assessed in a civil action in the name of the State of Arkansas.
Although it is unlikely that punishment for a violation of the new law would rise to imprisonment, it is a warning to employers that they must proceed with great caution when monitoring an applicant’s or employee’s use of social media.
Employers should educate supervisors and company recruiters about Act 1480 and modify employee policies and procedures accordingly.