What This Means for Employers and Employees

The new section of New York’s labor law makes it illegal for employers to require employees or job applicants to provide access to their personal social media accounts. Below is a detailed breakdown of what the law says.

What Employers Cannot Do

The new law prohibits employers from: 

  • Asking employees for their usernames, passwords, or any other login info used to access personal social media accounts
  • Requiring employees to log into personal social media accounts in front of them
  • Requiring employees to show them the content inside of their personal accounts
  • Firing, disciplining, or threatening employees who refuse to provide access to their personal social media accounts
  • Refusing or failing to hire job applicants who do not provide access to their personal social media accounts

It’s worth noting that employers can still ask employees for login information for social media accounts or electronic devices that the company owns or uses for business purposes.

Exceptions

There are several important exceptions to the new social media law, which include the following:

  • Employers are allowed to access an employee’s account if they need to comply with the law or a court order. Employers can ask for access to devices or accounts an employee uses for work purposes, especially if they tell the employee about this rule beforehand and the employee agrees.
  • Employers can also monitor or block access to certain websites using their networks or devices they pay for, as long as employees are notified and agree to these rules.
  • Employers are allowed to look at any public information about employees that they can see without needing employees’ login info. This includes information necessary for hiring employees or investigating employee misconduct.
  • The social media access restrictions do not apply to law enforcement, fire departments, or corrections or community supervision departments.

How Employers and Employees Should Respond

Both employers and workers in New York should understand their rights and responsibilities to ensure compliance with the new law and protect personal privacy.

To comply with the updated labor law, employers should:

  • Review and Revise Policies: Employers should thoroughly review their current social media and privacy policies to ensure they align with the new law. Policies that require access to employees’ or applicants’ personal social media accounts should be revised.
  • Update Training and Communication Standards: Employers should train HR personnel and managers on the new requirements to prevent unintentional violations. They should also communicate these changes to all employees to foster transparency.
  • Establish Clear Guidelines: Employers should establish clear guidelines for company-owned accounts or devices used for business purposes. These guidelines should specify which information they might require access to and under what circumstances, so employees are aware of expectations and can provide informed consent.
  • Secure Consent Properly: If employers need consent from employees to access work-related accounts or devices, they should ensure the consent process is clear, documented, and voluntary so it adheres to the law’s stipulations.

If you are a worker, you should:

  • Know Your Rights: Familiarize yourself with the new law to understand your rights regarding personal social media accounts and what an employer can and cannot do.
  • Maintain Privacy: Update or verify the privacy of your personal social media accounts. Be cautious about what you share publicly, as employers can still view and use publicly available information.
  • Understand Exceptions: Be aware of the exceptions under the law where an employer might have the legal authority to access your personal or business-related accounts. 
  • Report Violations: If you believe your rights under this law have been violated, report these violations by working with your HR department, local labor board, or a New York labor law attorney.

Consent Wisely: If your employer requests access to any account or device for business purposes, ensure you fully understand what you’re consenting to and the scope of the access you’re granting before complying.

Discrimination During the Hiring Process

Discrimination during the hiring process means treating job applicants unfairly based on their race, gender, religion, or other personal characteristics. This unfair treatment can happen in different ways. Sometimes, it involves asking inappropriate questions during job interviews. Other times, it might involve making assumptions about what someone can do based on their background, beliefs, or appearance.

New York’s new social media law will go a long way in fighting this kind of discrimination. In the past, some employers demanded access to job applicants’ private social media accounts to find out more than they ordinarily would during the standard interview process. They might have used this access to look for clues about someone’s personal life, beliefs, or who they are outside of work, and made their hiring decisions accordingly. This type of practice is unfair because personal social media profiles can reveal much about someone’s race, religion, or other private details that should not influence hiring decisions.

By making it illegal for employers to require access to applicants’ personal social media accounts, the new amendment aims to keep the focus on what really matters: an applicant’s skills and qualifications. This means that everyone gets a fairer chance during the hiring process. Employers can still check public information but cannot dig into private spaces to find reasons to discriminate against job applicants. This change is a big step toward making the job market more equitable for everyone in New York, ensuring that employers respect personal privacy and avoid discrimination during the hiring process.

Other Specific Types of Discrimination Covered by the Labor Law

New York law already prohibits discrimination against current or prospective employees based on protected characteristics such as age, sex, race, religion, pregnancy, and disability. The purpose of these anti-discrimination laws is to ensure that everyone has a fair opportunity to secure employment and to be treated equitably within the workplace. 

New York’s new social media law further strengthens these protections by addressing a modern issue: the use of personal information from social media to discriminate against employees or job applicants. By making it illegal for employers to demand access to employees’ and applicants’ personal social media accounts, the law closes a loophole that employers could exploit to gather information on protected characteristics. This creates a more level playing field, where employment decisions are based on merit and professional qualifications rather than personal details or private lives.

Age

Age discrimination in the workplace can occur when employers make decisions about an employee or applicant based on perceived age-related limitations instead of their skills or qualifications. For example, an employer might not hire someone solely because they think the person is too old or young for a job. Similarly, they might decide not to promote an employee because they believe the employee is nearing retirement and wouldn’t be interested in advancing. In the past, employers could demand access to social media accounts to look for clues about a current or prospective employee’s age with the goal of using this information to discriminate against them unfairly. This could include information like graduation dates, birthday celebrations indicating milestone years, or comments about generational trends.

Sex

Sex discrimination involves treating someone unfairly because of their sex or gender identity. In practice, an employer might offer less pay to someone who presents as a woman than they would to a man for doing the same job. Previously, employers might require access to personal social media accounts, use them to learn about a prospective employee’s sex or gender identity, and make biased hiring decisions based on these details. For instance, an employer might pass over a qualified candidate based on how they present their sex or gender identity on social media, citing a poor company culture fit.

Race

Race discrimination occurs when employers make job-related decisions based on an employee’s or applicant’s race—for example, by hiring or promoting only people of a certain race or segregating employees by race within the company. In the past, employers might demand access to personal social media accounts and scour profiles for photos, cultural references, or affiliations to determine a current or prospective employee’s race or ethnic background. Then, they might use that information to exclude the individual from employment opportunities, foster a non-inclusive work environment, or justify unequal treatment.

Religion

Religious discrimination in the workplace involves unequal treatment based on perceived or actual religious beliefs or practices. For example, an employer might refuse to accommodate religious practices, like praying at certain times or wearing specific garments, or penalize someone for taking religious holidays off. Before the new law went into effect, employers could request access to an employee’s or applicant’s social media to look for posts about religious holidays, events, or places of worship. Then, they could use this information to make biased decisions, like not hiring someone because of their religion or forcing them into roles that limit their interaction with clients or the public.

Pregnancy

Pregnancy discrimination happens when employers treat women unfavorably, not just because of pregnancies but also because of medical conditions related to pregnancy. For example, an employer might pass over a pregnant applicant due to her condition or fire a woman because she becomes pregnant. It could also involve unlawfully denying a woman the opportunity to resume her previous job or a similar job when she returns from maternity leave. In the past, employers could require access to personal social media accounts with the goal of using them to find out if a woman was pregnant or planning to start a family soon. For instance, they might find posts about an employee’s pregnancy announcements or baby-related purchases and then unfairly decide not to hire, promote, or retain her because of her pregnancy status.

Disability

Disability discrimination involves treating someone unfavorably because of a real or perceived impairment. In the workplace, this might manifest as not providing reasonable accommodations for employees with disabilities, not hiring someone due to their disability, or harassing someone because of a disability. Previously, employers might demand access to social media profiles to look for any mention or visual evidence of a disability, such as using medical devices, discussing chronic illnesses, or participating in disability advocacy. Then, they might use this information to exclude the person from job opportunities, deny promotions, or create an inaccessible work environment rather than assess their abilities and make the necessary accommodations.

Subtle Signs of Discrimination in the Workplace

Discrimination in the workplace isn’t always obvious. Sometimes, it shows up in ways that don’t immediately draw attention, subtly making certain workers feel left out or quietly placing opportunities out of their reach. Here are some easy-to-miss signs of workplace discrimination:

  • Exclusion from Meetings or Projects: If an employee notices they are consistently left out of important meetings or projects, especially when their role should logically involve them, it might be a sign of discrimination. This exclusion could be because of their age, gender, race, or other protected characteristics. It sends the message that the company does not value their contributions or see them as a key part of the team, even if their skills and job position might suggest otherwise.
  • Different Standards for Different People: When an employer applies different standards or rules to different employees without a clear, job-related reason, it might indicate discrimination. For instance, some employees might be allowed flexible working hours while others with similar roles and performance levels are not, or some workers might be scrutinized more closely than others. This kind of inconsistency is unfair and can subtly undermine certain employees based on the personal biases of employers.
  • Subtle Comments or Jokes: Sometimes, discriminatory attitudes seep through in the form of off-color jokes or offhand comments that might seem harmless at first but can create an unwelcoming atmosphere for targeted employees. These remarks might be about someone’s race, accent, age, gender expression, or other personal attribute. While employers might brush them off as just jokes, they can signal deeper prejudices and contribute to an unhealthy culture of exclusion in the workplace.
  • Lack of Diversity in Leadership: A subtle but telling sign of discrimination in a workplace is the composition of its leadership. For instance, perhaps all the leaders come from a similar demographic background, or there might be a glass ceiling preventing diverse talents from rising to the top. This could point to underlying biases in the company’s promotion and hiring practices. A lack of diversity at the top can perpetuate a cycle of exclusion and limit the perspectives and ideas a company will consider in its decision-making.
  • Ignoring or Downplaying Complaints: Do employees raise concerns about unfair treatment, biases, or harassment, only for their complaints to be consistently ignored, minimized, or brushed aside? This could be a subtle sign of a discriminatory culture. An inclusive workplace takes such concerns seriously, investigating and addressing them to ensure a fair and respectful environment for all. Ignoring these issues allows discrimination to thrive quietly, eroding trust and morale.

How to Prove Employment Discrimination Took Place

If you know or suspect you have faced discrimination at work, an employment discrimination attorney can step in to help you assert your rights. This might involve gathering evidence, analyzing workplace practices, and interviewing witnesses to build a strong argument showing that you were discriminated against. Here are some specific steps your attorney might take to prove that employment discrimination has taken place:

  • Review of Company Policies and Records: Your attorney will likely start by examining the company’s policies and employee records. They will look for anything in the policies that might foster discrimination or show that the company doesn’t have strong measures against discrimination. They might also check employee records for patterns, such as only people of a certain race getting promoted or women consistently getting paid less than men for the same work. This allows them to understand the workplace culture and identify any direct or indirect evidence of discriminatory practices.
  • Collecting Witness Statements: Next, your lawyer might talk to coworkers and other witnesses to get an insider’s perspective of how your workplace operates. They might gather statements from people who have seen or experienced discrimination themselves. Witnesses can provide firsthand accounts of discriminatory remarks, actions, or policies they have observed. These testimonies can be powerful evidence in a workplace discrimination claim, especially if multiple people share similar stories about how an employer treats employees unfairly based on protected characteristics.
  • Analyzing Statistical Data: Your attorney might also look at statistical evidence to spot discrimination trends within the company. This might involve comparing the rate at which employees of different races are hired, promoted, or terminated. If the numbers show a clear disparity that disproportionately affects a protected group, this statistical evidence can strongly suggest that your employer engaged in discrimination. Good lawyers can use data to reveal biases that might not be obvious from individual cases alone.
  • Gathering Communications: Emails, text messages, social media posts, and other communications can be gold mines of evidence in workplace discrimination claims. Your lawyer might search through records of these communications to find any discriminatory statements or decisions documented in writing. For example, an email making derogatory remarks about someone because of their age or a text message scoffing about an employee’s religion could serve as direct evidence of discrimination.

Documenting the Impact on Your Life: Finally, your attorney will document how the discrimination has affected your life, including your career, finances, and emotional well-being. They can compile evidence of lost wages, missed promotions, job terminations, and any healthcare expenses resulting from the discrimination, such as therapy costs. Your personal testimony about the emotional and psychological impact of the discrimination can also play a significant role in showing the harm you have suffered.

Compensation for Affected Employees Under New York’s Employment Discrimination Law

If you win an employment discrimination claim in New York, you might be eligible for several types of relief to make up for your employer’s wrongdoing. Depending on the circumstances, this could include compensation for:

  • Back Pay: This is the money you would have earned from the time you were unfairly treated or lost your job up to the present. For instance, if you were wrongfully terminated because of your employer’s discrimination, back pay would include the wages you missed out on as a result. Compensation for back pay aims to put you back in the position you would have been in if the discrimination had never happened.
  • Front Pay: Front pay covers projected losses in future earnings. It’s for situations where it’s impossible for a worker to return to their old job, maybe because the work environment is too hostile or their previous position no longer exists. This compensation aims to support you until you can find a similar job that pays the same amount as your old one.
  • Emotional Distress: Being treated unfairly at work can cause considerable stress and emotional pain. This type of compensation acknowledges the suffering you experienced because of the discrimination. It’s meant to provide some relief for emotional and psychological impacts like anxiety, depression, or loss of enjoyment in life.
  • Legal and Other Professional Fees: This type of compensation reimburses you for the costs of hiring lawyers and other professionals to stand up for your legal rights. It prevents the financial burden of seeking justice from falling on you as the person who suffered from the discrimination.

If the situation merits, you could also be entitled to additional money in the form of punitive damages if your employer’s actions were particularly harmful or malicious. Punitive damages aren’t about compensating you for what you suffered. Instead, they’re meant to punish the employer and deter them and others from committing similar acts of discrimination in the future.

Additionally, the court might order reinstatement as part of its decision, in which case your employer must give you your old job back or find you a role in a similar position. This can be an important step in making things right, especially if the job is a big part of your personal identity or future career goals.

What Does an Employment Discrimination Attorney Do?

If you’re dealing with an employment discrimination claim in New York, having an experienced lawyer by your side can make a huge difference. A knowledgeable attorney can build your case on your behalf, protect your rights, and demand the compensation you deserve. Here are some ways an experienced New York attorney could assist you with your employment discrimination claim:

  • Reviewing your case and advising you on its strengths and weaknesses
  • Gathering and analyzing evidence to support your claim
  • Interviewing witnesses who can testify on your behalf
  • Filing a complaint with the appropriate state agency if an employer violates your rights
  • Calculating the full extent of any compensation you’re entitled to
  • Reviewing job offers or contracts for clauses that might violate the new social media law
  • Challenging adverse actions against you based on unlawfully obtained social media data
  • Interpreting complex legal rules and regulations, then applying them to your case
  • Protecting you from retaliatory actions by your employer
  • Drafting and submitting legal documents related to your case
  • Negotiating with your employer or their lawyers to reach a settlement
  • Seeking the maximum compensation available under the law
  • Representing you in court if your case goes to trial
  • Preparing you for depositions and other legal proceedings
  • Coordinating with expert witnesses to strengthen your case
  • Challenging evidence presented by the opposing side
  • Advocating for your rights at every stage of the legal process
  • Meeting all relevant legal deadlines for your discrimination claim
  • Keeping you informed about the progress of your case

How Lipsky Lowe Can Help

If you’re facing workplace discrimination in New York, let the trusted team at Lipsky Lowe LLP put over 40 years of employment law experience to work for you. As a premier NYC employment law firm, we’re here to fight for your rights in and out of the courtroom. Our attorneys have extensive litigation and negotiation experience in a wide range of employment law matters. We know how to conduct thorough investigations to defend you against discrimination, unfair wage practices, and wrongful termination. Our deep knowledge of federal, state, and city employment laws and our sharp understanding of effective legal strategies have helped us recover millions in rightful compensation for our clients. At Lipsky Lowe LLP, we understand that every case is unique. That’s why we prioritize listening to you, understanding your specific situation, and crafting a strategy that addresses your individual needs. When you decide to work with us, you get so much more than just legal representation. You get a team of committed allies whose goal is to assert your rights and demand justice on your behalf. 

Contact a New York Employment Lawyer Now

Do you suspect that your employer has violated the new social media law or otherwise discriminated against you? Lipsky Lowe LLP is here to address your concerns and take action on your behalf. Contact us today for a free initial consultation, and let’s discuss how we can protect your rights and interests in the workplace.

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