April 4, 2024

New York Employers Beware: State's Social Media Privacy Law Became Effective March 12, 2024

Holland & Knight Alert
Jennifer Lada | D'Andre Chapman


  • New York Gov. Kathy Hochul signed legislation restricting employers from accessing the social media accounts of employees and job applicants.
  • The legislation, which became effective on March 12, 2024, imposes a strict prohibition on a New York employer's ability to access the social media accounts of employees and job applicants, with only a few exceptions permitted.
  • The legislation applies to all employers governed by the New York Labor Law, except for law enforcement agencies, fire departments, and departments of corrections and community supervision.

New York Gov. Kathy Hochul signed two bills on Sept. 14, 2023, Assembly Bill 836 (A836) and Senate Bill 2518A (S2518A). The law applies to personal social media accounts, defined as "an account or profile on an electronic medium where users may create, share, and view user-generated content." Popular social media platforms – such as Facebook and Instagram, among others – are intended to fall within this definition.

What Is Prohibited by the Law?

The bills amend the New York Labor Law (NYLL) in several ways:

  1. It prohibits employers from soliciting or requiring employees or job applicants to divulge their username, password or any other access credentials for their personal social media accounts.
  2. It prohibits employers from requiring employees and job applicants to access their personal social media accounts in the presence of the employer.
  3. It prohibits employers from mandating or requesting employees or job applicants to provide copies of photographs, videos or any other content from their personal social media accounts.

The law also protects employees and job applicants from any retaliation from the employer for refusing to disclose such details.

The law is applicable to all employers governed by the NYLL, except for law enforcement agencies, fire departments, and departments of corrections and community supervision.

New York's law is just one of many similar measures introduced around the country this year to protect employees' online privacy from employer scrutiny. A growing number of states – including California, Delaware, Illinois, Louisiana, Maryland, Michigan, Montana, New Hampshire, New Jersey and Vermont – already have enacted similar laws to protect individuals from employer inquiries into their private social media activities.

What Are Potential Exceptions?

The law provides certain exceptions for employers. For example, employers may still retrieve information concerning an employee or job applicant that is publicly accessible or that is voluntarily shared by the individual for the purpose of reporting or investigating alleged misconduct.

Among other things, the law still allows employers to:

  • request access information for nonpersonal accounts used to access the employer's internal systems
  • request access information for business-related accounts
  • access employer-provided electronic communication devices under certain conditions
  • impose restrictions on employee internet access while using company resources
  • comply with court orders regarding employee accounts

The law does not interfere with a company's obligations to screen employees or monitor communications as required by federal law or self-regulatory organizations.

The law is enforced through the New York Department of Labor's Division of Labor Standards, and there is no private right of action.

Best Practices for Employers

New York employers should consider the following best practices in light of the new social media law:

  • Employers should review their policies and procedures concerning access to social media accounts to help guarantee adherence to this recent law.
  • Employers should instruct and train managers on the new restrictions.
  • Employers maintaining business-related social media accounts should consider formally informing all employees in writing that there is no presumption of privacy in their utilization of these accounts.

For more information on this topic, please contact the authors or your Holland & Knight attorney.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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