Wisconsin has become the thirteenth state to enact a law limiting the circumstances under which employers may request or require access to the personal internet accounts of applicants and employees. The 2013 Wisconsin Act 208, which amends the Wisconsin Fair Employment Act (WFEA) and will be enforced by the Department of Workforce Development (DWD), prohibits employers from “requesting or requiring” employees and applicants to provide “access information” for their “personal Internet account” or “to otherwise grant access to or allow observation of that account.” In addition to prohibiting these requests for access information and access, the new law, as a general rule, prohibits employers from discriminating or retaliating against (e.g., discharging or refusing to hire) an employee or applicant who exercises their rights under the law. While the law primarily protects the privacy of employees and applicants, it also offers employers a limited degree of protection. Because the meaning and impact of the law’s requirements and exceptions will evolve over time, employers should approach access issues with care and on a case-by-case basis. Employers should also keep in mind other risks associated with monitoring the social media activity of employees and applicants.

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