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Nevada Passes Law Limiting Employer Access to Social Media Information

The Nevada Office of the Labor Commissioner recently passed Assembly Bill 181, which limits employer access to social media information of employees and applicants. Effective October 1st, 2013, Nevada employees will be prohibited from directly or indirectly requesting, suggesting or causing an employee or applicant to disclose his or her social media account information, including user names and passwords. Employers will not be able to threaten, discharge, discipline, discriminate, or deny employment or promotion to an employee or candidate who refuses or fails to provide information to allow access to his or her personal social media.

This legislation protects the social media privacy of all private employers or any person acting in the interest of an employer in relation to an employee or an application candidate. The law does not include provisions for enforcement or remedies, and it may not be interpreted to allow an employer to act contrary to other state or federal laws. Also, Nevada’s provision does not prohibit employees from requesting social media information so long as it is reasonably believed to be necessary for an investigation related to employee misconduct. The law will be included in the employment practices chapter of the Nevada Revised Statutes (Chapter 613).

Arkansas, California, Colorado, Illinois, Maryland, Michigan, New Jersey, New Mexico, Oregon, Utah, Vermont and Washington are among the thirty-six states that have adopted social medial privacy laws differing in scope and available remedies. Some of these states only prohibit employers from requesting social media information for employees, and do not place such restrictions for the hiring process. For example, the New Jersey employee social media privacy law, signed by Governor Chris Christie on August 29, 2013, allows affected employees to report employer violations to the Commissioner of Labor and Workforce Development, and imposes employer fines of $1,000. However, the New Jersey law does not apply to state and county corrections departments, the state parole board, and state and local law enforcement agencies.

The National Labor Relations Act protects employee expression about shared working conditions. The scope of protection of social media information, known as “concerted activity” usually depends on the nature of the employee communication. Complaints about allegedly unfair or unwarranted practices tend to be protected if other employees respond, even if they include name-calling. The law protects discussion of wages, hours or other working conditions, suggestions or threats to pursue group action, or voiced concerns related to a larger group of employees. However, the Office of the General Counsel for the National Labor Relations Board released an advice memorandum on May 8, 2013 explaining that an employee’s social media messages are not protected if they are individual gripe and only related to the employee himself.

After the passage of the new law, Nevada employees will be entitled to protection from employers or employer agents making employment decisions based on whether they provide their social media account information. Under Federal law, even outrageous posts about working conditions will be protected so long as they are shared employee issues about terms and conditions of employment.
If you believe you were not hired for not providing information about your social media network or that you were fired because of your social media activity, please contact The Harman Firm, LLP.

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