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Legal Alert

Louisiana Bans Access To Employees' Social Media


On May 22, Louisiana Gov. Bobby Jindal signed the Personal Online Account Privacy Protection Act into law. The Act, effective immediately, prohibits employers from requesting or requiring access to the personal online accounts of applicants or employees. Louisiana joins 11 other states that have already passed similar legislation. The Act also applies to educational institutions, which are prohibited from requesting or requiring the same information from students or prospective students.

This Act does not create a duty for an employer or educational institution to search or monitor the activity of an individual’s personal online account. That’s important because, where information is readily available, an employer could face liability for ignoring it (such as negligence claims). The Act’s language protects against that, at least in part.

What’s Protected
The Act protects personal online accounts. A “personal online account” is an account used exclusively for personal communications unrelated to any business purpose of the employer or educational institution. A personal online account does not include accounts that the employer or educational institution created, services, or uses for business or educational purposes. Facebook and Twitter accounts, for example, would almost always be protected. An employee’s work email, however, would not be.

Who Is Covered
The Act applies to virtually all private and state or local government employers, regardless of size, that are doing business in Louisiana. As of now, those employers will be unable to request or require employees or applicants to disclose usernames, passwords, or other authentication information that would allow the employer access to personal online accounts. The Act bars an employer from retaliating against an employee or applicant (e.g., discharging, disciplining, failing to hire or otherwise penalizing or threatening to penalize the employee) who fails to disclose that information.

The Act applies to private and public educational institutions in a similar fashion. Educational institutions may neither request nor require disclosure of information that would allow access to a student’s or prospective student’s personal online account. Likewise, if a student or prospective student fails to provide that information, the educational institution is barred from expelling, disciplining, failing to admit, or otherwise penalizing or threatening to penalize the student or prospective student.

Employer Exceptions
While the law affords the individual new privacy protection, it still allows employers and educational institutions a considerable amount of leeway.

Even under the new law an employer may still:

If the employer inadvertently obtains an employee’s or applicant’s authentication information by virtue of a device or program that monitors an employer’s network or a device the employer provides, the employer will not be liable. That being said, you may not use such information to access the employee’s personal online account. Finally, if an employee or applicant voluntarily self-discloses, the employer will not be liable.

Educational Institution Exceptions
The exceptions for an educational institution are fewer than those for an employer. The Act allows an educational institution to:

As with employers where an employee or applicant voluntarily disclosed authentication information, an educational institution would not be liable if a student or prospective student were equally as forthcoming.

All Bark And No Bite?
As written, the law does not provide for a penalty against the employer or educational institution for violation of the Act, nor does it codify a private right of action for the individual. Thus, the Act may be more of a gold standard than a mandatory one.

The Bottom Line
Considering the issues that may arise when an employer or educational institution has access to authentication information of personal online accounts (for a good accounting of the risks, read this), the Act may actually prove beneficial. Employers and educational institutions are still allowed to search publicly available information online, which is now commonplace. Going beyond that and accessing additional information may create liability.

For more information contact any attorney in the firm’s New Orleans office at 504.522.3303, or our Gulfport, Mississippi office at 228.822.1440.

This Legal Alert provides an overview of a specific state law. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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