June 2014

By: Alan E. Seneczko, Esq.

The Wisconsin legislature recently enacted two laws that affect Wisconsin employers. The laws, which took effect in April 2014, are not particularly “earth-shattering,” but they are nonetheless worth noting.

Recordkeeping, Exempt Employees – One of the weird anomalies of Wisconsin wage and hour law has always been its requirement that employers keep records of the hours worked by exempt, salaried employees. I am sure that many of you are now saying “it did,” but have no fear. It no longer does. 2013 Wis. Act 286 amended the Wisconsin minimum wage law to expressly provide that employers are not required to keep records of the hours of employment of employees who are exempt from the requirement to be paid overtime and not paid on an hourly basis.

Social Media Account Access – By now, employers should know that they cannot access an employee’s Facebook page, personal email account, etc., without the employee’s authorization, given that such conduct is prohibited by the federal Stored Communications Act. As a result, 2013 Wis. Act 208, “Internet Privacy Protection,” should be old news.

Effective April 10, 2014, the law prohibits a Wisconsin employer from requesting or requiring an employee or applicant to disclose access information for, grant access to, or allow observation of a personal internet account (an account “created and used by an individual exclusively for purposes of personal communications”) as a condition of employment; and from discharging, refusing to hire or otherwise discriminating against a person who refuses such a request or opposes such practices. An employer may, however:

• Discharge or discipline an employee for transferring confidential information or financial data to the employee’s personal internet account without authorization.
• Conduct an investigation of misconduct, if the employer has reasonable cause to believe that activity in the employee’s personal internet account relating to the misconduct has occurred. Examples include alleged unauthorized transfer of proprietary information; job-related misconduct; violations of the law or the employer’s work rules as specified in an employee handbook. In such circumstances, an employer may require an employee to grant access to or allow observation of a personal internet account, but may not require the employee to disclose access information for that account.
• Restrict or prohibit a person’s access to certain internet sites while using a device or network supplied or paid for by the employer.
• Request or require access to a device, account or service supplied or paid for by the employer, which is provided by virtue of the employment relationship or is used for the employer’s business purposes.
• View, access, or use information about an employee or applicant that is available in the public domain or that can be viewed without access information.
• Request or require disclosure of an employee’s personal email address.

An employer that inadvertently obtains access information through use of an electronic device or program that monitors the employer’s network, or through an electronic communications device supplied or paid for by the employer is not liable for possessing that information as long as the employer does not use that information to access the employee’s personal internet account.

Simple rule of thumb: If it is personal and you need the employee’s password to see it; you cannot look. If you can see it in the public domain without a password, no problem.

Questions? Please contact WS Attorney Alan E. Seneczko at (262) 560-9696, or email alseneczko@wesselssherman.com .