business law

It’s a competitive world out there and many Wisconsin employers wish they could be a proverbial “fly on the Facebook® wall” when it comes to their employees and prospective hires. Is that valued employee saying one thing to management and another on social media? Inquiring minds want to know. What right does a Wisconsin employer have to the information an employee posts online? Can a prospective employer require access to an applicant’s social media?

Employers Have Minimal Rights to Online Posts

Since Governor Walker signed Wisconsin Public Act 208, effective April 9, 2014, employers’ ability to require applicants and employees to divulge the user names, passwords, and other “security information” that protect their internet accounts (including social media sites) has been severely restricted. Employers may not condition employment on the disclosure by an applicant or employee of the access information related to such accounts. Additionally, employers may not:

  • Discharge or refuse to hire an employee or applicant for failing to divulge access to information, or
  • Retaliate against employees who file complaints under the new law.

Rules Are Different if Device is Provided by Employer

An employer may require an employee to disclose access information for any electronic communications device supplied or paid for, in whole or in part, by the employer. The employer may also require access information regarding any accounts or services provided by the employer, obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes.

Some Disciplinary Rules Still Apply

A Wisconsin employer may discipline or terminate an employee who transfers confidential or proprietary information to his or her personal Internet account or accounts without authorization. Moreover, an employer can still require the employee to cooperate in an investigation of employment-related misconduct, violations of law, or violation of employee handbook rules if the employer has “reasonable cause” to believe that the personal internet account contains information related to the violation or misconduct. It should be noted, however, that this exception allows the employer to view the employee’s personal Internet account; it does not allow the employer to obtain access information.

Public Domain Information Access is Allowed

Wisconsin’s law does not prohibit employers from viewing, accessing, and using information that can be obtained without access information or that is available in the public domain.

Penalties for Employer Violations Can Be Costly

The law provides that an employer who violates the law may be required to “forfeit” up to $1,000. The law has other sharp teeth, however. The Equal Rights Division (ERD) is employed to investigate violations in the same fashion as it investigates any employment discrimination claim. If the Division finds a violation, it can award remedies available in other ERD cases, including back pay and attorney’s fees.

Employers Should Review Hiring and Monitoring Procedures

Employers should carefully review current hiring and monitoring procedures related to their employees. Engaging in prohibited activity can be expensive. Accessing an employee’s or applicant’s social media accounts without proper authorization may also violate federal statutes such as the Stored Communications Act and may further be actionable as invasion of privacy violations. Additional litigation can occur if the employer asks for access and then, following refusal, fails to hire the applicant. Employment experts warn that the landscape is a litigation minefield.

The Milwaukee business litigation firm of Kerkman Wagner & Dunn has more than 50 years of combined legal experience representing business owners in Wisconsin in all sorts of business and employment matters, particularly those that involve litigation. We have strong experience with employment issues and understand how the social media law can affect your business. Our firm has big firm talent and provides small firm attention. Call us at 414-278-7000 or complete our online contact form.

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