010.14-500
Prohibiting Employer From Requiring Access to Employee Social Media
Account
A.
Purpose.
The purpose of this rule is to provide clarification for the
enforcement and administration of Ark. Code Ann. §
11-2-124.
In general, the statute provides that an employer shall not require, request,
suggest, or cause a current or prospective employee to:
1. Disclose his or her username and password
to the current or prospective employee's social media account;
2. Add an employee, supervisor, or
administrator to the list or contacts associated with his or her social media
account; or
3. Change the privacy
settings associated with his or her social medial account.
The Director of the Department of Labor is authorized to
enforce all labor laws in the State of Arkansas, the enforcement of which is
not otherwise specifically provided for. Ark. Code Ann. §
11-2-108(1).
Further, the director has the power to make, modify, or repeal such rules, or
changes in rules, as he may deem necessary to carry out the provisions of
subchapter1, Chapter
1 of the Arkansas Code, which
includes §§
11-2-108
and -124. Ark. Code Ann. §
11-2-110(b).
B.
Definitions
As used in this rule and Ark. Code Ann. §
11-2-124(b):
1. "Agent, representative or designee of the
employer" means an individual with supervisory, managerial, or operational
control over the work of an employee; including a human resources officer,
manager, or supervisor with respect to a prospective employee;
2. "Cause" means an action by the employer
which results in the employee or potential employee acting in a manner they
otherwise would not through stated or implied coercion;
3. "Prospective employee" means an individual
who has submitted a job application or equivalent document, such as a resume,
for an open position or an individual who is actively and specifically
recruited by an employer;
4.
"Request" means a request in which the employer intends to induce the employee
or potential employee to act in a manner they otherwise would not through
stated or implied coercion;
5.
"Statute" means Ark. Code Ann. §
11-2-124;
6. "Suggest" means a suggestion in which the
employer intends to induce the employee or potential employee to act in a
manner they otherwise would not through stated or implied coercion;
and
7. "Stated or implied coercion"
includes, but is not limited to a stated or implied threat to discharge,
discipline or otherwise penalize a current employee, or a stated or implied
threat to refuse to hire a prospective employee.
C.
Acts Not Prohibited
The following acts are not prohibited by this rule or Ark. Code
Ann. §
11-2-124.
1. The act of issuing an invitation to add a
current or prospective employee through a social media account, in itself, is
not prohibited.
2. Nothing in the
statute or this rule is intended to prohibit employees, supervisors, and
administrators from adding one another as social media contacts where the
interaction is voluntary and no stated or implied coercion is
present.
3. Nothing in the statute
or this rule prohibits an employer from utilizing social media as a means of
advertising to the general public or recruiting prospective employees, provided
there is no stated or implied threat to refuse to hire a prospective employee
who exercises any right pursuant to the statute.
4. Nothing in the statute or this rule
prohibits an employer from requiring an employee to monitor communications from
the employer by means of email or a company website.
5. Any requirement, request, suggestion or
action of an employer which occurred prior to the effective date of Act 1480 of
2013 shall not be a violation of the act even though the social media
relationship continues after the effective date of the act. In the event an
employee or prospective employee terminates the social media relationship or
contact, any action or requirement of the employer after the effective date of
Act 1480 of 2013 to renew or reinstate such contact shall be subject to the
requirements of the act.
D.
Enforcement
1. The Department of Labor shall not refer
any violations of Ark. Code Ann. §
11-2-124
for criminal prosecution.
2. In the
event the Labor Standards Division determines that there has been a violations
of §
11-2-124,
or this rule, following an investigation of the matter, the department may
assess a civil money penalty pursuant to Ark. Code Ann.
11-2-105(b)
or seek injunctive relief.
3.
Notice of a civil money penalty assessment and the procedures for contesting an
assessment shall be those in ADL Rule
010.14 -111.
E.
Effective Date
The effective date of this rule is July 14,
2014.
