What's Your Password?
Numerous states and the federal government are moving forward with legislation addressing employers' access to employees' and applicants' social media accounts. According to HRLaws, even if your state has yet to consider legislation prohibiting employers from accessing that type of data, the way other states have handled the issue may shape just how far employers can go when using 
social media as a source of information in making employment decisions.
Illinois Embraces Privacy
An example in Illinois; a local county sheriff set off a media firestorm when he required applicants to "friend" the sheriff, allowing the sheriff's office unfettered access to applicants' private pages, but that unpopular practice has been "unfriended." On August 2, Illinois became the second state to pass social media legislation.
The recently enacted amendment to the Illinois Right to Privacy in the Workplace Act (effective January 1, 2013) makes it unlawful for an employer to request a password or other account information to access an employee's or a prospective employee's social networking website. It's worth noting that a previous version of the Act raised red flags for employers. The original Act contained almost no employer-friendly exceptions and prohibited employers from even accessing an employee's social networking website. The legislation yields some relief, as the enacted version restricts employers only from asking for login information.
Does the Federal Government 'likes' social media policies?
Congress secured its position on social media policy in early May when it introduced the Password Protection Act of 2012. Although the legislation remains in committee and hasn't yet passed the House or Senate, you should be aware of the Bill's contents. Citing privacy and discrimination concerns associated with forced disclosure, the bill prohibits employers from requiring an employee to provide access to any information stored on a computer when the information isn't owned or controlled by the employer. For example, under the current version of the bill, an employer couldn't require an employee looking at Facebook on his work computer to disclose his password because doing so would allow the employer access to information controlled by Facebook administrators.
The measure also protects prospective employees by:
- prohibiting employers from requiring disclosure as a condition of employment.
- prohibiting employers from taking an adverse action against an employee who refuses to disclose personal password information.
could face financial penalties. Click the link to review the text and check its status.
What's next?
Employers should be aware of recent developments on both the state and federal levels. The common thread among the various versions of proposed legislation is that you cannot request or require the login information of employees or prospective employees. If your current practice includes requesting an employee's or an applicant's social media login information, you should consider a review of your policies, especially if you have operations in Maryland, Illinois, New Jersey, or Washington (HRLaws, 2013).
