Employer Prohibited from Demanding Access to Online Personal Accounts of Employees

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In today’s society, it is the normal for an employee to have social media and online personal accounts in their everyday lives on which they share their thoughts and opinions, which at times can be controversial.  Even though these accounts are personal in nature, often an employee may comment on a subject related to their chosen area of profession and sometimes their employer.  With regard to those comments, what right does an employer have to demand access to or monitor those accounts and demand access to the employee’s postings?  Connecticut law attempts to provide some guidance into that area under Connecticut General Statute Section 31-40x.

Under Section 31-40x, no employer shall:

(1) Request or require that an employee or applicant provide such employer with a user name and password, password or any other authentication means for accessing a personal online account;

(2) Request or require that an employee or applicant authenticate or access a personal online account in the presence of such employer;

(3) Require that an employee or applicant invite such employer or accept an invitation from the employer to join a group affiliated with any personal online account of the employee or applicant;

(4) Discharge, discipline, discriminate against, retaliate against or otherwise penalize any employee who (A) refuses to provide such employer with a user name and password, password or any other authentication means for accessing his or her personal online account, (B) refuses to authenticate or access a personal online account in the presence of such employer, (C) refuses to invite such employer or accept an invitation from the employer to join a group affiliated with any personal online account of the employee, or (D) files, or causes to be filed, any complaint, whether verbally or in writing, with a public or private body or court concerning such employer’s violation of this subdivision and subdivisions (1) to (3), inclusive, of this subsection; or

(5) Fail or refuse to hire any applicant as a result of his or her refusal to (A) provide such employer with a user name and password, password or any other authentication means for accessing a personal online account, (B) authenticate or access a personal online account in the presence of such employer, or (C) invite such employer or accept an invitation from the employer to join a group affiliated with any personal online account of the applicant.

The most important question is what constitutes a “personal online account”?  Under the statute, a “personal online account” is any online account that is used by an employee or applicant exclusively for personal purposes and unrelated to any business purpose of such employee’s or applicant’s employer or prospective employer, including, but not limited to, electronic mail, social media and retail-based Internet web sites. “Personal online account” does not include any account created, maintained, used or accessed by an employee or applicant for a business purpose of such employee’s or applicant’s employer or prospective employer.

Despite the strong language of the statute on what an employer is prohibited from requesting or requiring, there are some exceptions to the rule in that an employer may request or require that an employee or applicant provide such employer with a user name and password, password or any other authentication means for accessing: (A) any account or service provided by such employer or by virtue of the employee’s employment relationship with such employer or that the employee uses for such employer’s business purposes; or (B) any electronic communications device supplied or paid for, in whole or in part, by such employer. An employer is not prohibited from monitoring, reviewing, accessing or blocking electronic data stored on an electronic communications device paid for, in whole or in part, by an employer, or traveling through or stored on an employer’s network, in compliance with state and federal law.

But what about the employers’ obligations during an employer investigation? Under Section 31-40x(d)(1)(a), an employer is not prohibited from conducting an investigation for the purpose of ensuring compliance with applicable state or federal laws, regulatory requirements or prohibitions against work-related employee misconduct based on the receipt of specific information about activity on an employee’s or applicant’s personal online account; or (B) conducting an investigation based on the receipt of specific information about an employee’s or applicant’s unauthorized transfer of such employer’s proprietary information, confidential information or financial data to or from a personal online account operated by an employee, applicant or other source.

Any employer conducting such an investigation may require an employee or applicant to allow the employer to access his or her personal online account for the purpose of conducting such investigation, provided such employer shall not require such employee or applicant to disclose the user name, password or other authentication means for accessing such personal online account.

If an employee believes that they are aggrieved by this statute and the actions of their employer, an employee or applicant may file a complaint with the Labor Commissioner alleging such violations. Upon receipt of the complaint, the Labor Commissioner will investigate the complaint and may hold a hearing.  After the hearing, the Labor Commissioner will send each party a written copy of his or her decision. Any employee or complainant who prevails in such hearing shall be awarded reasonable attorney’s fees and costs.

If you are an employee who believes that you have been the unfairly mandated to provide prohibited information from an employer, or if you are an employer facing allegations of a violation of Connecticut General Statutes Section 31-40x , please call the experienced employment counsel at Harlow, Adams & Friedman, P.C. today at 203-878-0661 for a free consultation.

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