Social media employment legislation on its way to Wisconsin

Wisconsin is poised to become the 13th state to pass legislation prohibiting employers from requesting social media account information from employees or applicants. Assembly Bill 218 and Senate Bill 223 follow the trend sweeping across the country in response to reports of employers asking applicants for access to social media accounts as part of the interview process. Legislators supporting the bill are hailing it as “The Social Media Protection Act.”

In its current form, the Wisconsin bill would prohibit employers from requesting access to, observing, or requesting information allowing access to the social media account of an applicant or employee. Additionally, employees and applicants would be protected for refusing an employer’s or potential employer’s request for such information.

In attempting to strike a balance between privacy concerns and potential workplace issues, the legislation provides important exceptions. The bill explicitly allows employers to review information on social media that is available in the public domain. Additionally, employers may require employee cooperation to investigate an alleged unauthorized transfer of proprietary or confidential information under the bill. These and other exceptions address many potential employer concerns related to social media and the workplace.

The proposed legislation has received widespread, bipartisan support in both the state Assembly and Senate. Currently, 54 state senators and assemblypersons from both sides of the aisle have attached their names to the Social Media Protection Act. The bill also enjoys the support of the Greater Madison Chamber of Commerce and the ACLU, while Wisconsin Manufacturers & Commerce has credited the balance between privacy and employer concerns struck by the legislation.

Employers currently relying on social media information to evaluate applicants or monitor employees will want to consider whether current policies could potentially run afoul of this Wisconsin legislation or may already violate the federal Stored Communications Act. Very likely, this assessment will mean limiting review of social media information to materials publicly available without the need for a password. Any interview questions seeking social media account information likely should be eliminated. Such practices will be outlawed by state law if, as anticipated, the Social Media Protection Act is indeed enacted.

—Jesse Dill is an attorney in Milwaukee and author of www.wiemployerlawyer.com.

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