Online Privacy at Work

By Sharon Frankenberg,
Attorney at Law

Effective on January 1st of this year is the Employee Online Privacy Act of 2014 (“EOPA”).  The complete act may be found in Tennessee Code Annotated Sections 50-1-1001 through 1004.  Among other things, the EOPA governs what an employer may do with respect to applicants’ and employees’ personal online accounts.  Within the EOPA “Personal Internet account” (A) means an online account that is used by an employee or applicant exclusively for personal communications unrelated to any business purpose of the employer; and includes any electronic medium or service where users may create, share or view content, including, emails, messages, instant messages, text messages, blogs, podcasts, photographs, videos or user-created profiles; and (B) does not include an account created, maintained, used, or accessed by an employee or applicant for business-related communications or for a business purpose of the employer.  This statute applies to personal online accounts and communities but not business communications, business email or online accounts.              EOPA prohibits employers from requesting or requiring an employee or an applicant to disclose a password that allows access to the employee’s or applicant’s personal Internet account;  compelling an employee or an applicant to add the employer or an employment agency to the employee’s or applicant’s list of contacts associated with a personal Internet account;  compelling an employee or an applicant to access a personal Internet account in the presence of the employer in a manner that enables the employer to observe the contents of the employee’s or applicant’s personal Internet account;  or taking adverse action, fail to hire, or otherwise penalize an applicant or employee because of a failure to disclose information or take any action prohibited in the act.

What is the employer permitted to do under EOPA?  An employer may request or require an employee to disclose a username or password only to gain access to an electronic communications device supplied by or paid for by the employer;  or an account or service provided by the employer that is obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes.  An employer may take action against an employee for transferring the employer’s proprietary or confidential information or financial data to an employee’s personal Internet account without the employer’s uthorization.  Employers may conduct an investigation and require an employee to cooperate if there is specific information on the employee’s personal Internet account regarding compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct; or if the employer has specific information about an unauthozized transfer of the employer’s proprietary information, confidential information, or financial data to an employee’s personal Internet account.  The employer may also restrict an employee’s access to certain web sites while using an electronic communications device supplied by or paid for by the employer or while using an employer’s network or resources, in accordance with state and federal law.

Contact an attorney if you need legal advice and assistance with your unique situation.  Sharon Frankenberg is an experienced attorney licensed in Tennessee since 1988.  She maintains a solo law practice handling foreclosures, evictions, collections and probate matters.  She represents Social Security disability claimants and represents creditors in bankruptcy proceedings. Her office is in Knoxville and she may be reached at (865)539-2100.

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