NY’s New Employment Law Targets Privacy Concerns

April 5, 2024 | Tamika N. Hardy | Caitlyn Gibbons | Privacy, Data & Cyber Law | Employment & Labor

In the current age of social media, employers have begun to increasingly rely on digital platforms to screen prospective employees.

In an effort to address the growing concerns over privacy and the use of social media in employment decisions, New York has recently implemented a new law to protect employees’ and job applicants’ social media privacy. The law aims to set boundaries that could aid in preventing privacy infringements by employers.

The new law, which went into effect on March 12, 2024, amends the New York Labor Law (NYLL) to prohibit employers from requiring or requesting access to an employee’s or job applicant’s social media accounts.

Specifically, employers cannot ask for an employee or job applicant to disclose their usernames, passwords, or login information to personal social media and other “personal accounts,” which the law defines as “an account or profile on an electronic medium where users may create, share, and view user-generated content” that “is used by an employee or an applicant exclusively for personal purposes.”

Additionally, employees and job applicants cannot be asked or required to access their personal social media accounts in the presence of the employer, and employers are prohibited from requiring or requesting that employees or applicants reproduce photographs, video, or other information from their personal social media accounts.

Moreover, employers are prohibited from taking any retaliatory action against an employee or job applicant for their refusal to disclose any of the information specified above under this law. Employees and applicants have a private right of action under the law.

The new law applies to all employers covered by the NYLL, with the exception of law enforcement agencies, fire departments, and departments of corrections and community supervision. However, the law also includes several exceptions and carve-outs that employers should be aware of. These exceptions/carve-outs allow employers to access or request access to employees’ social media or non- “personal” account information:

  • Access employer-provided electronic communications devices, as long as the employer provides prior notice of this access right to employees, and the employee agrees to such conditions. However, employers are still prohibited from accessing an employee’s “personal” accounts on any employer-provided electronic device.
  • Request or require employees to disclose access information to accounts that are provided by the employer that are used for business purposes, granted the employee was provided prior notice of such access rights.
  • Screen job applicants using information that is available in the public domain that can be obtained without asking applicants to disclose their usernames.
  • View photographs, videos, messages, and other information for the purposes of investigating misconduct if the employee in question voluntarily gives the employer access to such information.
  • Restrict employee access to certain websites while using the employer’s network or an employer-provided electronic device.
  • Request or require employees to disclose access information to an employer’s business social media account.
  • Accept friend or other contact requests from employees and job applicants that were voluntarily sent.
  • Comply with court orders to obtain or provide information from or access to an employee’s personal social media accounts.

New York employers should review their company policies and hiring practices and determine whether changes are needed to ensure compliance with the new restrictions set in place by this law.

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