What Employers Need to Know About Internet Employment Privacy Acts

Power is in the palm of your hand. One person with a 2018 smartphone has more computing power than most U.S. companies did in 1984.

With that power comes complex privacy questions for employers.
A 2019 Pew Research Center report indicated more than 80 percent of adults in the United States own smartphones. Most employees have access to work email on smartphones, and most use the same phones for personal calls, web surfing, and social media. Lines blur between personal and work uses.

Blurred lines can mean lawsuits. Privacy cases are working their way through the legal system, but states aren’t waiting for the results. Since 2013, legislatures in 26 states have passed variations of an Internet Employment Privacy Act (IEPA). Iowa has not, but Iowa employers will still be affected by laws enacted by other states and related court decisions.
State IEPAs commonly ban employers from accessing employees’ personal accounts on “any device that uses electronic signals” to transmit information. Some state IEPAs also prohibit employers from “friending” employees on social media.

State laws often include exceptions:

• If an employer has information that an employee used a personal account for business purposes, the employer may access the device to ensure compliance with laws.
• Based on information that an employee downloaded proprietary or financial data to a personal account, an employer may access the device for purposes of investigation.
• An employer may view and use information about an employee that can be obtained without a user name and password or that is available in the public domain.

The public domain exception raises the question of what is designated as public domain. That includes:

• Social media information not designated as private.
• Google searches.
• Social media information volunteered by an employee.

Employers need clear written policies addressing company access to personal devices. Your labor and employment attorney can help you navigate the evolving legal landscape.