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New York Governor Kathy Hochul signed into law bill A836 on September 14, 2023, prohibiting employers from requesting or requiring employees or job applicants to disclose the login credentials for their personal social media accounts, or from retaliating against employees or job applicants who refuse to do so. Specifically, the law renders it unlawful for an employer to request, require, or coerce any employee or job applicant to:

It is similarly unlawful for an employer to take any adverse action against an employee or to refuse to hire an applicant because the individual refused to provide the above-noted information.

Importantly, the law broadly defines the term employer as any person or entity engaged in a business, industry, profession, trade or other enterprise in [New York], as well as any agent, representative or designee of the employer. Accordingly, the laws impact will likely be widely felt.

Permitted Activity

Even though the new law is concerned with prohibiting employers from requiring disclosure of an employee or applicants personal login credentials, employers may continue to view information on an individuals personal social media account that is publicly available. Indeed, the law expressly does not prohibit or restrict an employer from viewing, accessing, or utilizing information about an employee or applicant that can be obtained without any required access information, that is available in the public domain, or for the purposes of obtaining reports of misconduct or investigating misconduct, photographs, video, messages, or other information that is voluntarily shared by an employee, client, or other third party that the employee subject to such report or investigation has voluntarily given access to contained within such employees personal account. Similarly, the law does not prohibit an employer from requesting that an employee or applicant disclose their social media usernames, only their usernames and passwords.

The law also provides that employers may still lawfully:

The law also provides that it will be an affirmative defense to any legal action under the law that the employer acted to comply with requirements of federal, state, or local law.

Next Steps for Employers

The law will take effect on March 12, 2024. In anticipation of the new law, employers should closely assess their social media policies and speak with experienced counsel to implement appropriate internal procedures and devise required notices and acknowledgements to ensure compliance with the laws requirements.

2023 Perkins Coie LLP

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New York Bans Employers From Requiring Disclosure of Personal ... - Perkins Coie