Update Applicable to:

All employers with employees performing work in Montana

What happened?

Governor Greg Gianforte signed SB 270 into law on 5/2/2023. This is an amendment to existing law.

What are the details?

The amendments are effective October 1, 2023. Employers cannot punish (i.e., retaliate or fire) job applicants or employees for expressing legal free speech on social media. Since April 2015, Montana already has a law protecting employees from employer interference with personal social media accounts (HB343).

Prohibited Conduct Under Existing Law:

In Montana, an employer or its agent may not request or require that an applicant or employee:

• disclose login information for the applicant or employee’s personal social media account,

• access personal social media in front of the employer or its agents, or

• divulge any personal social media or information contained in that account.

Mont. Code Ann. § 39-2-307(1).

Employers may not discharge, discipline, threaten, or otherwise retaliate against an employee or applicant because he or she refuses to comply with the employer’s request or demand which violates this section. Mont. Code Ann. § 39-2-307(4).

Per Mont. Code Ann. § 39-2-307(2), an employee must provide the user name or password to access personal social media if necessary to make a factual determination when the employer:

• has specific information about an employee’s activity that indicates employee misconduct or criminal defamation per Mont. Code Ann. § 45-8-212,
• has specific information about an unauthorized transfer of the employer’s proprietary, confidential, or financial information by the employee to a personal online account, or service, or
• is required to ensure compliance with applicable federal laws or regulations or the rules of self-regulatory organizations per 15 U.S.C. § 78c(a)(26).

Per Mont. Code Ann. § 39-2-307(3), the law does not:

• prohibit lawful workplace policies about the use of employer equipment, or that require disclosure of the employee’s user name, password, or other information necessary to access employer-issued electronic devices or access employer-provided software or e-mail accounts;
• prevent an employee from seeking an injunction in response to actions taken under Mont. Code Ann. § 39-2-307(2); or
• prevent the prosecution of a person for violating privacy in communications under Mont. Code Ann. § 45-8-213.

2023 Amendments (emphasis added)

(4) An employer may not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or job applicant for:

(a)  not complying with a request or demand by the employer that violates this section; or

(b) legal expressions of free speech by the employee or job applicant, as protected in 39-2-904, made on personal social media.

(5) The provisions of subsection (4)(b) do not apply if the expression:

(a) by an employee or job applicant violates an employer’s written policy; or

(b) violates the terms or conditions of the employee’s employment contract.

For more information, please see the links below:

Bill Page: Link

Bill: SB0270

Existing Law: Montana Code 39-2-307

Law Firm article of original bill: Link

What do employers need to do?

Employers should review the existing law and above amendments to ensure continued compliance with the law and the additional provisions per the amendment.

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