On February 27, 2014, the Wyoming House failed to pass (on a 16-36 vote in the House) a bill that would have restricted an employer's ability to request or require access to a social media account of an employee or prospective employee. The Senate approved the bill on February 18, on a 28-2 vote.

With the growth of social media and peoples desire to share everything with the world, even news that is subject to an explicit confidentiality provision, many employers have used these same tools to evaluate prospective employees as well as monitor current employees.

Several states have already passed laws restricting employer access to employee's or prospective employee's social media accounts. As of this writing, Wyoming would have been the thirteenth state.

Proposed Bill S.F. 81 provided that it was a "discriminatory or unfair employment practice [f]or an employer or employment agency, itself or through its agent, to request or require any employee or prospective employee to disclose any username, password or other means for viewing or accessing the information contained on an employee's or prospective employee's personal social media account." [1] The proposed Bill further defined "social media account" as "an electronic service or account, or electronic content, including but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or internet website profiles or locations." [2]

But, the proposed Bill did not prohibit employers and their agents from engaging in a number of activities, including, for example, "[r]equesting an employee or prospective 3employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding[.]" [3]

The proposed language would have been incorporated into the Wyoming Fair Employment Practices Act of 1965 (Title 27, Chapter 9), which provides that, aggrieved parties may bring their cases to the Wyoming Department of Workforce Services. [4]

According to a report by BNA, "House bill sponsor Ruth Ann Petroff (R) [said] that the bill failed 'because there were a perfect number of people who didn't think the bill went far enough combined with a perfect number who thought it went too far.'"

Employers should continue to pay attention to passed and pending legislation regarding social media access as well as on-going activities at the National Labor Relations Board. Employers should also be aware that reviewing the social media accounts of prospective employees may put them at risk to claims that decisions not to hire were unlawful discrimination or retaliation for activity that is protected by law. Existing laws prohibit employers from basing their hiring decisions on a number of factors, including a personís age, race, national origin, religion and marital status. The Constitutions and laws of a number of states prohibit additional factors.

NOTE: Tatiana Melnik is not licensed to practice law in Wyoming. Please contact counsel licensed in Wyoming with questions related to Wyoming law. For referrals, please check with the Wyoming Bar Association at https://www.wyomingbar.org/.

[1] State of Wyoming, Employer Access to Social Media Accounts, Senate File No. SF0081, 27-9-105(a)(v) (Feb. 2014), available at https://legisweb.state.wy.us/2014/Introduced/SF0081.pdf.

[2] Id.

[3] Id. at 27-9-105(a)(v)(B).

[4] See sec. 27-9-106(a). ("Any person claiming to be aggrieved by a discriminatory or unfair employment practice may, personally or through his attorney, make, sign and file with the department within six (6) months of the alleged violation a verified, written complaint in duplicate which shall state the name and address of the person, employer, employment agency or labor organization alleged to have committed the discriminatory or unfair employment practice, and which shall set forth the particulars of the claim and contain other information as shall be required by the department. The department shall investigate to determine the validity of the charges and issue a determination thereupon."


Posted on: March 26, 2014

By: Tatiana Melnik