Delaware Passes Law Protecting Employee and Applicant Social Media Accounts

Delaware joined 21 other states across the country by passing a law that restricts employer access to personal social media accounts.

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On August 7, Governor Jack Markell signed four pieces of legislation into law expanding the online protections of residents and employees.

One bill in the package, House Bill 109, also referred to as The Employee/Applicant Protection for Social Media Act, protects employee and applicant personal social media accounts. The law which also took effect on August 7, prohibits employers from:

  • Demanding access to an employee’s or applicant’s personal social media accounts;
  • Demanding an employee accesses personal social media accounts in the presence of the employer;
  • Adding a person, including the employer, to the list of contacts associated with the applicant’s or employee’s personal social media
  • Inviting or accepting an invitation from any person, including the employer, to join a group associated with the applicant’s or employee’s personal social media; or
  • Altering settings on the applicant’s or employee’s personal social media that affect a third party’s ability to view the contents of the medium.

 What Employers Should Know

The Employee/Applicant Protection for Social Media Act protects an applicant’s or employee’s personal online activity, however, it does not prohibit an employer from investigating and punishing conduct that is damaging to the employer or business. Employers can retain control over company accounts created for business purposes.

Employers are allowed to:

  • Exercise their rights under their personnel policies, federal or state law to require or request an employee to disclose their username, password, or social media “reasonably believed to be relevant” to an investigation of alleged employee misconduct or violation of applicable laws and regulations
  • Require or request an employee disclose a username, password, or other accessing credentials for
    • an electronic communication device supplied by or paid for by the employer; or
    • an account or service provided by the employer, or used for the employer’s business purposes;
  • Access, block, monitor, or review electronic data stored on an employer’s network or on an electronic communications device supplied by or paid for by the employer;
  • Screen applicants or employees, monitor or retain employee communications,
  • Access, use, or view information about an applicant or employee available in the public domain.
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Delaware Protects Pregnant and Transgender Workers

The Delaware Department of Labor revised the Delaware Labor Law Poster required for all employers to reflect the inclusions of pregnant and transgender employees as workers who are protected from employment discrimination.

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What Changed on the Delaware Labor Law Poster?

The revised posting includes Gender Identity as a class protected from discrimination in hiring and employment, and it adds a section informing employers that pregnant workers must receive reasonable accommodation in the workplace.

Delaware Gender Identity

Delaware Governor Jack Markell signed into law the Gender Identity Nondiscrimination Act (SB 97) in 2013. The Act added gender identity to Delaware’s existing law (Title 19) prohibiting discrimination in the workplace and in housing. The original legislation in 1999 had been rewritten without gender identity included. Employers may not treat transgender workers any differently than other workers in hiring, firing, promotion, or pay.

According to the Delaware statute, Gender identity means “a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.”

Employers may still require all workers “…to adhere to reasonable workplace appearance, grooming and dress standards not precluded by other provisions of state or federal law, except that an employer shall allow an employee to appear, groom and dress consistent with the employee’s gender identity.” [§ 711 (m)]

Delaware Pregnancy Discrimination

Pregnant workers or those who have given birth or suffer from pregnancy-related medical conditions are protected from workplace discrimination under the Delaware Discrimination in Employment Act (DDEA). The Act covers employers with 4 or more employees, including state and local governments. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.

If a pregnant worker is unable to perform her typical job duties because of pregnancy or pregnancy-related medical condition, then the employer must provide reasonable accommodation [see § 710 (17)], such as light-duty assignments, or allow the worker to take disability leave or time off without pay.

After giving birth, the worker must be allowed to return to her former job with no adverse effects to pay or promotion.

In addition to displaying the Delaware Labor Law Poster, Delaware employers must notify [§ 716 (b)(1)]:

  • New employees in writing about Delaware’s pregnant worker protections.
  • All other employees verbally or in writing by January 7, 2015.
  • Pregnant workers verbally or in writing within 10 days after they alert the employer about pregnancy.

Delaware Labor Law Poster

The Delaware Labor Law Poster is available as part of the Delaware Poster Compliance Package from GovDocs. Order now and save 20% with coupon code BLOG20.

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