On April 29, 2014 Governor Haslam signed into law the Employee Online Privacy Act of 2014. This new law takes effect January 1, 2015 and applies to all employers in Tennessee who employ at least one person.
The stated purpose of this legislation is to protect employees’ “personal internet accounts” from forced or mandatory disclosure to employers as a condition of hire or continued employment. The term “personal internet accounts” is defined as “an online account that is used by an employee or applicant exclusively for personal communications unrelated to any business purpose of the employer; and includes any electric medium or service where users may create, share or view content, including, emails, messages, instant messages, text messages, blogs, podcasts, photographs, videos or user-created profiles …” This expansive definition clearly includes personal Facebook, Twitter and Instagram accounts.
The Act prohibits employers from such actions as (1) requesting or requiring that an employee or applicant for employment disclose passwords to the employee/applicant’s personal internet accounts; (2) requiring an employee/applicant to add the employer to any list of contacts or “friends” associated with a personal internet account; (3) compelling an employee/applicant to access a personal internet account for the purpose of allowing the employer to view the contents of the employee/applicant’s personal internet account; or (4) refusing to hire or taking other adverse employment action due to an employee/applicant’s failure to undertake the actions prohibited by the Act.
There are, however, a number of exceptions to these prohibitions. These exceptions include the ability to access internet accounts provided by the employer for use in the employer’s business; reviewing electronic data on an electronic communications device supplied by or paid for in whole or in part by the employer; and conducting an investigation when the employer has information about the employee’s unauthorized transfer of the employer’s proprietary, confidential or financial information to the employee’s personal internet account. The Act also provides that is not a violation for an employer to view, access or use information that is available online to the public without requiring approval or permission of the employee/applicant to access.
Employers or employees with questions or concerns about requiring access to personal internet accounts or being asked to do so should consult with legal counsel as this new statute has yet to be construed by Tennessee courts. In addition, while early versions of the Act contained specific remedies for its violation, the final version contains no remedy provision. This also makes enforcement very problematic.
John M. Lawhorn of Frantz, McConnell & Seymour, LLP practices extensively in the field of Labor and Employment law and regularly advises clients concerning federal and state laws pertaining to employment discrimination, retaliation and harassment, workplace policies, OSHA/TOSHA compliance, wage and hour compliance, labor/management relations, employment contracts and in many other aspects of the employment field. He regularly represents employer and employee interests in Tennessee State and federal courts on a wide variety of employment related matters.
