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Michigan Places More Limits On Employer Social Media Control

A Workplace Law Client Alert

By: Bodman's Workplace Law Practice Group

01/10/13

The explosion of social media use has generated increasing need for employers to regulate and control worker misuse through social media policies. Also on the rise are the number of federal and state laws and agency and court decisions applicable to employer access to worker social media sites. As an example, the federal Stored Communications Act prohibits access without authorization, and numerous states outside of Michigan limit an employer’s right to discipline employees for lawful conduct that takes place outside of work.

On December 28, 2012, Michigan added its own Internet Privacy Protection Act, which prevents an employer from requesting access or observation, or taking adverse job action for failure to grant access or observation, by a worker or applicant, of their personal Internet account.

There is no such protection for employer access or observation where the employer provides the communication device or the account being used. Employer rules governing use of employer provided devices, networks, or resources are still allowed. Employer access or observation of publicly available Internet information is not impacted.

Employee misconduct is an important exception in the new law to access or observation of personal Internet account information. Access or observation can be required if there is individualized assessment showing personal account activity that raises questions of misconduct or unauthorized use of proprietary or confidential information. Employers must exercise care in applying this exception.

Violations of the new Internet Privacy Protection Act can expose employers to civil liability of up to $1000 plus reasonable attorney fees and costs, as well as misdemeanor criminal charges and similar fines. Employers can also face agency and court claims by affected workers or applicants for adverse job actions resulting from any improper employer access or observation of their personal Internet accounts.

The new law similarly prevents schools (pre-K to university level, vocational, technical, public, nonpublic) from requesting access or observation, or taking adverse action for failure to grant access or observation, of student or prospective student privacy-protected personal Internet accounts.

Contact our Workplace Law Group attorneys for guidance in applying these social media access laws and in developing a social media policy that works for your workplace.

Bodman PLC Workplace Law Group