Updated 

Nevada limits access to employee's social media accounts, credit reports


New social media and personal credit privacy laws have been enacted recently in a number of states around the country — including Nevada — could present problems for businesses, according to a Las Vegas-based labor and employment attorney.

In addition to Nevada, seven states — Arkansas, Colorado, New Mexico, Oregon, Utah, Vermont and Washington — this year have enacted so-called social media laws preventing employers from requesting usernames and passwords to websites and personal Internet accounts.

A total of 36 states are considering social media privacy laws.

Nevada’s Assembly Bill 181, which was signed June 13 by Gov. Brian Sandoval, takes effect Oct. 1. The newly enacted law makes it illegal for Nevada employers to require, request, or suggest that an employee or a prospective employee disclose the user name, password or other access information to personal social media accounts.

Under the law, employers cannot fire, discipline, discriminate against, or fail to hire or promote employees or prospective employees who refuse, decline or fail to provide access to personal accounts on Facebook, LinkedIn, and Twitter.

“It’s a very bad idea because it is a vast expansion of what typically is understood as ‘private,’” said Laura Thalacker, a management-side labor and employment attorney with Lionel Sawyer & Collins in Las Vegas. “This is a law that could create real problems for Nevada employers.”

Thalacker said if an employee shares information with 200, 300 or 400 friends, it normally wouldn’t receive privacy protection under the law. The Nevada law restricts an employer from asking the employee to provide information so the employer can review that information, even in circumstances where the employer may have a compelling business reason to view personal social media information.

A compelling reason might be workplace violence or a harassment investigation, she said.

“I guess you could always Google the person and hope that the same information comes up publicly,” Thalacker said.

In many cases, these statutes were prompted by concerns that employers were becoming more aggressive in seeking to access social media accounts of employees and job seekers, a concern Thalacker believes has been overstated.

In March, Utah Gov. Gary Herbert signed social media privacy legislation.

According to Utah’s new law, a company can ask an employee for personal login information if the company provides the account or service. The Utah law also gives employers the right to ask for login information when it has specific information that an employee is using a private social media account to store or distribute company data.

Thalacker, who doubted the need for employee social media protections, said these laws make it essential that companies implement a social media policy.

“We have far greater privacy issues facing the country than employers asking for user names and passwords,” Thalacker said. “It’s a feel good, populist measure that was easy to pass. But, was it really necessary?”

Separately, Nevada on May 25 became the 10th state to prohibit employers from using credit information for employment purposes. The law goes into effect Oct. 1.

The new law adopts a very broad definition of employer to include private employers and “any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee” from requiring a credit report as a condition of employment.

“I don’t like this law,” Thalacker said. “It’s more Nevada regulations and we start looking less friendly to employers. There are so many exceptions written into the credit check law that I am not sure how many employers will actually be prevented from accessing this information.”

The law does have numerous exceptions, including allowing employers to still use credit history information in the gaming and financial industries. The law also excludes certain categories of employees such as those who handle money, or the personal or personal financial information of others, as well as employees with managerial or supervisory responsibility and employees with access to trade secrets and other proprietary or confidential information.

The law has a three-year statute of limitations and, in addition to Labor Commissioner fines of up to $9,000 for each violation, it allows employees to sue for monetary and other damages.

“The private right of action is a concern,” Thalacker said. “Litigation is very expensive to defend.”

Contact reporter Chris Sieroty at csieroty@reviewjournal.com or 702-477-3893. Follow @sierotyfeatures on Twitter.

 

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