Navigating the Compliance Challenge of Employers and Social Media

By Jana Bjorklund, GovDocs Senior Counsel and
Director, Employment Law and Compliance
Published April 30, 2024

Benefits and Pitfalls of Social Media Use by Employers GovDocs

Employer access to applicant or employee social media accounts can result in potential risks to the company and give rise to potential discrimination claims.

Social Media Use for Gathering Employee Info 

For employers, social media can be a double-edged sword, providing both benefits and potential pitfalls. Companies frequently use social media to promote brand awareness, market products or services, and drive visibility to their website, among other uses. However, some added complications that can arise when employers use social media to gather information on applicants or employees. 

Employer access to applicant or employee social media accounts can result in potential risks to the company and give rise to potential discrimination claims. Social media accounts often serve as a forum where individuals share their private thoughts and information. Many times, information posted on social media includes details about an individual that they may not want their potential or current employer to see. Additionally, social media accounts may include information about an individual’s protected characteristics that a potential employer may not want to know prior to hire.  

Concern Over Privacy  

Businesses continue to rely on digital platforms to screen applicants, which has caused growing concern relating to an individual’s right to privacy in their personal social media accounts. There are no federal laws prohibiting employer access to applicant and employee social media accounts, and as a result, many states have passed laws that limit an employer’s access to these accounts to balance an individual’s right to privacy while allowing employers to make informed hiring decisions and manage their workforce.  

New York is the latest state to pass such a law. 

New York’s New Social Media Law 

New York is the latest state to pass a law limiting an employer’s access to the social media accounts of job applicants and employees. In the fall of 2023, New York’s governor signed two bills, SB 2518A and AB 836, which prohibit employers from requesting or requiring job applicants or employees to disclose their username and password for their personal social media accounts. “Personal social media accounts” are defined as “an account or profile on an electronic medium where users may create, share, and view user-generated content.” Social media platforms like Facebook, Instagram, TikTok, X, and other similar products would fall within this definition. The law also protects job applicants and employees from any retaliation for refusing to disclose such information. The law went into effect on March 12, 2024. 

Exceptions Under New York’s Social Media Law 

The law allows some exceptions. Employers may still access information about a job applicant or employee that is publicly accessible or voluntarily shared for the purpose of reporting or investigating alleged misconduct in the workplace. 

Employers may also access information on nonpersonal accounts, business-related accounts, employer-provided electronic devices, and to comply with a court order regarding an employee account. 

Other States with Similar Laws 

Many other states have similar laws to protect an employee’s online privacy from employer scrutiny. As always, each state’s law is a little different, so employers should be aware of the details of the laws in the states where they do business. States with similar laws include: 

Arkansas  Michigan  Rhode Island 
California  Montana  Tennessee 
Colorado  Nebraska  Utah 
Connecticut  Nevada  Vermont 
Delaware  New Hampshire  Virginia 
Illinois  New Jersey  Washington 
Louisiana  New Mexico  West Virginia 
Maine  Oklahoma  Wisconsin 
Maryland  Oregon   


Best Social Media Practices for Employers 

Employers should review their policies and procedures and have a clearly written social media policy which is not only distributed to employees but also explained to them. HR and managers should be trained on what is legally permissible under the law and the company’s policies regarding accessing social media in the hiring process with applicants and during an employee’s tenure with the company.  

Employers may also consider documenting their process for using social media accounts in recruitment and during employment. Such documentation can be important in demonstrating compliance in the event there is a dispute.


The importance of complying with social media laws and understanding the legal landscape across the country is essential for several reasons. Adhering to these laws protects the company from legal fines, disputes, and damage to its public image, and will also support ethical recruitment processes to attract top talent.

Looking for additional support and guidance to ensure compliance across multiple jurisdictions? Check out our employment law and compliance platform for help with labor law posters, minimum wage, and paid leave at every location.


This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.

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