Illinois Law Bans Employer Requests for Social Media Passwords

On August 1, 2012, the governor of Illinois signed into law a measure that makes it unlawful for employers to ask current and prospective employees for passwords to social media and networking accounts.

The Illinois Right to Privacy in the Workplace Act (The Act), which goes into effect on January 1, 2013, is part of a nationwide trend to enhance privacy protections for workers and, in particular, job candidates. Maryland has already adopted such a law, and nearly a dozen states are considering similar legislation (as is the federal government).

What’s in The Act? From law firm Duane Morris:

“Under the new law, Illinois employers are prohibited from asking or requiring that an employee or applicant provide his or her password or other account information for—and from otherwise demanding or obtaining access to the private portions of—an employee’s or applicant’s social networking account or profile. The Illinois Right to Privacy in the Workplace Act also prohibits discrimination based on an employee or applicant’s use of lawful products off-duty.

The Act has no exceptions to the password inquiry prohibition, but provides that the prohibitions do not limit an employer’s right to obtain information about employees or applicants that is in the public domain (e.g., information posted publicly on social media websites). The Act also expressly acknowledges an employer’s right to maintain lawful workplace policies on the use of the employer’s computer system or equipment and to monitor employees’ use of the employer’s electronic equipment and email systems.”

But the new law is vague, writes law firm Littler:

“It is … not clear what ‘demand[ing] access in any manner’ means. Facebook privacy settings may be set up in such a way that friends and ‘friends of friends’ can see a Facebook page. If a member of an employer’s management ‘friends’ an employee’s Facebook friend and gains access to the employee’s Facebook page in that way, has the employer demanded access? Turning to other social media sites, if a manager uses his or her personal Twitter account and requests to follow an employee’s private personal Twitter account, has the manager demanded access?”

Equally important, the law does not allow for what could be legitimate access to employee social media accounts. Law firm Franczek Radelet:

“… the Act could prevent employers from responding to discovery requests in litigation, where an adverse party was seeking relevant evidence contained in an employee’s social networking account. One prominent discovery consultant’s survey located thousands of court cases in state and federal courts in the past two years on subjects ranging from employment-related litigation to insurance claims to general business litigation that involved evidence from social media outlets.”

In spite of the criticism, however, the new law is scheduled to go into effect as is. That gives employers less than five months to prepare. From Levenfeld Pearlstein:

“It is important that employers review their social media policy and other policies and procedures relating to employee hiring and discipline to ensure that they are consistent with the new Illinois standards, and that employers train management employees and all employees involved in hiring to ensure that they understand and comply with the new Illinois standards and with other legal requirements. Also, in light of the NLRB’s recent focus on social media policies and on how disciplinary action against employees for posts on social media can violate the National Labor Relations Act (even in non-union workplaces), we recommend that all employers train their management and human resources teams on managing the legal pitfalls in employees’ use of social media.”

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