On July 1, 2015, a new law, Virginia Code Section 40.1-28.7:5 went into effect that prohibits Virginia employers from requiring current or prospective employees: (1) to disclose their social media account usernames and/or passwords or (2) to add an employee, supervisor or administrator to their list of contacts.  Although the law provides a safe harbor for employers that inadvertently acquire employee usernames and passwords through an employee’s use of employer-owned electronic devices or through network monitoring software, the law prohibits an employer from using an employee’s inadvertently acquired username and password to access the employee’s social media accounts.

The law also prohibits employers from retaliating against employees who exercise their rights under the law.  Specifically, employers must not take action against “or threaten to discharge, discipline, or otherwise penalize a current employee” or “fail or refuse to hire a prospective employee” for not divulging the employee’s social media account information or for not adding an employee, supervisor or administrator to their list of contacts.

The law expressly permits employers to view information the employee or prospective employee makes publicly available.  Thus, employers may still research employees’ and prospective employees’ public statements on social media.

Employers will want to take affirmative steps to make sure that they do not run afoul of this new law.  Employers should review their employee handbooks, policies and practices to make sure they are not engaging in any prohibited activity.

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Photo of David Greenspan David Greenspan

David Greenspan is a trial lawyer whose practice focuses on proactive counseling and aggressive litigation of employee mobility disputes and complex employment matters. Mr. Greenspan works with his clients to identify and resolve issues before they become adversarial in nature. Mr. Greenspan also…

David Greenspan is a trial lawyer whose practice focuses on proactive counseling and aggressive litigation of employee mobility disputes and complex employment matters. Mr. Greenspan works with his clients to identify and resolve issues before they become adversarial in nature. Mr. Greenspan also serves his clients as a zealous advocate in litigation, arbitration and other administrative proceedings.

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At McGuireWoods, we deliver quality work, personalized service and exceptional value. We use technology to provide efficient legal solutions and employ a diverse workforce to bring real-world and innovative perspectives to meeting our clients’ needs. With 1,100 lawyers and 21 strategically located offices…

At McGuireWoods, we deliver quality work, personalized service and exceptional value. We use technology to provide efficient legal solutions and employ a diverse workforce to bring real-world and innovative perspectives to meeting our clients’ needs. With 1,100 lawyers and 21 strategically located offices worldwide, McGuireWoods uses client-focused teams to serve public, private, government and nonprofit clients from many industries, including automotive, energy resources, healthcare, technology and transportation.