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Employers Violating Michigan’s New Internet Privacy Protection Act Will Face Criminal and Civil Penalties

Posted by Eric Parzianello on January 2, 2013

A new Michigan law which was unanimously passed by the Michigan legislature and signed by Governor Rick Snyder on December 28, 2012, will impose criminal and civil penalties on employers for requesting an employee or applicant for employment to permit access to or allow observation of that person’s “personal internet account.” A “personal internet account” is defined as a:

bounded system established by an internet-based service that requires a user to input or store access information via an electronic device to view, create, utilize, or edit the user’s account information, profile, display, communications, or stored data.”

Personal internet accounts include popular social media sites such as Facebook and Twitter. The law will be known as the “Internet Privacy Protection Act” (“IPPA”). The IPPA which is immediately effective also applies to educational institutions and prohibits colleges, for instance, from requesting access to personal internet accounts as part of their admission process.

Aside from prohibiting a request for access, an employer is now prohibited from taking adverse action against an employee or applicant for any refusal to allow the employer to access or observe the person’s private social media accounts. A violation of the law is a misdemeanor punishable by a maximum fine of $1,000.  An individual who was the subject of the violation can also bring a lawsuit and recover up to $1,000 in damages plus reasonable attorney fees and court costs after the person makes a written demand on the employer for payment.

Certain actions remain permissible for employers, including:

  • viewing information which is publicly available;
  • requesting access to an electronic device paid for by the employer; reviewing data stored on an electronic device paid for by the employer; and
  • requesting access to an employee’s personal internet account to investigate misconduct if specific information about misconduct exists.

The issue of employee use of social media continues to be a thorny one for employers. An employee’s privacy rights must be balanced with an employer’s right to hire and fire as it pleases. Some cases have already restricted employers’ firing rights such as one which prohibited an employer from firing an employee for inappropriate posts on her Facebook page. To now subject an employer to potential criminal penalties for merely requesting access to personal information seems excessive.

Further, this law creates an invitation for litigation by rejected job applicants. Even if access is not actually requested from a job applicant, if the applicant’s Facebook page or Twitter account is even mentioned during an interview, the likelihood that litigation will be commenced increases. If an employer receives the required demand letter from an applicant, it will need to decide whether to simply pay $1,000 or go to court. If it decides not to pay, it will need to hire an attorney and then face the possibility of paying the applicant’s attorney fees if it loses in court. There is no provision in the proposed legislation which allows an employer to recover its attorney fees if it is successful in court.

There is also an issue of who is liable in the event of a violation. Since the IPPA refers to a ‘person’ who violates the law, training interviewers is important. A company supervisor could be unknowingly subjecting herself to personal liability. Training for anyone who interviews candidates on behalf of a company now becomes even more vitally important to address not only this potential law but all types of questions which are ‘off-limits’ in an interview.


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